L. SCOTT COOGLER, District Judge.
In the above-entitled action, Jewell Duncan ("Plaintiff") claims that her former employer Tacala, LLC ("Tacala"), and former managers Lewis Willis ("Willis") and David Deville
Tacala owns and operates Taco Bell restaurants, including a Taco Bell restaurant located in Jasper, Alabama. Plaintiff was hired by Tacala on August 6, 2009, and was employed at all relevant times in a Team Member position. In November of 2009, Tacala completed a third-party background check on Willis that revealed no prior criminal history, then hired him as Restaurant General Manager for the Jasper Taco Bell restaurant.(Gisin Dec. ¶ 6.) Willis began managing the Jasper restaurant in January of 2010. Around the same time, Tacala assigned Deville to serve as Area Coach over multiple restaurants, including the Jasper restaurant.
Between January and July of 2010, Willis made several inappropriate comments to Plaintiff. Once, he told Plaintiff that he would not purchase an expensive Valentine's gift "unless somebody gave him some." (Pla. Depo. 88:10-15.) On less than five occasions, Willis made comments about having sex with his wife. (Id. 90:12-91:11.) Willis told Plaintiff twice that he would like to "hit her from behind" and once that she had "big ole titties."(Id. 81:14-23.) Once, Willis told Plaintiff in front of her coworkers that she was too old and too big to be working in a restaurant. (Id. 135:20-136:20.) Finally, Willis would apparently hide employment applications in the trunk of his car, and only provide them to young females who inquired about employment at Taco Bell. (Terry Depo. 48:18-22.)
On July 28, 2010, Willis told Plaintiff that Deville did not like her dreadlocks, and that Deville did not want her on the premises, so she was terminated. That afternoon, Plaintiff called Tacala's Director of Employee Administration, Angelique Gisin ("Gisin"), and left the following message: "Good afternoon. My name is Jewell Duncan. . . . I am calling from the Jasper store. Ma'am, I need to speak with you. It is very important, thank you, ma'am." (Gisin Decl. ¶ 7; Pla. Depo. 99:17-100:22.) She eventually got in touch with someone from human resources, who told her to go back to work. (Pla. Depo. 133:6-15.)
After receiving Plaintiff's message, Tacala's human resources department performed an investigation at the Jasper restaurant in which employees were asked to submit written statements identifying any issues they may have had in the restaurant. Plaintiff submitted a handwritten statement on July 30, 2010, alleging inappropriate treatment by Willis and Deville, but not referencing sexual harassment or any inappropriate sexual comments by Willis. Plaintiff's handwritten statement concluded with, "P.S. there is a whole lot more!!!" (Doc. 20-4 at 55.)
On September 10, 2010, Plaintiff submitted an intake questionnaire to the Equal Employment Opportunity Commission ("EEOC") alleging, inter alia, sexual harassment by Willis. The EEOC received the questionnaire on September 15, 2010. (Doc. 20-4 at 64-70.)
A few months after Plaintiff submitted her handwritten statement to Tacala's human resources department, Willis came into the restaurant and stated that "[s]omeone has filed a sexual harassment case on me. I don't know who it is, but I'm going to find out." (Pla. Depo. 123:20-126:2.) A few minutes later, Willis informed Plaintiff, "they told me don't talk to you, you have a sexual harassment case on me." (Id. 129:3-8.) Thereafter, Willis selected Plaintiff more frequently to go home when the restaurant was overstaffed. (Id. 129: 18-22.) In October of 2010, Willis also told Plaintiff that the reason she had not received a raise was because she "didn't like to do favors." (Id. 157:18-22.)
On December 7, 2010, the EEOC sent Plaintiff a letter informing her that she needed to take some steps to file an EEOC charge. (Doc. 20-4 at 71.) Plaintiff followed the EEOC's instructions and filed a charge on December 17, 2010. (Doc. 20-4 at 72-75.)
Plaintiff filed the present action on April 23, 2012, alleging sexual harassment and retaliation in violation of Title VII, and emotional distress and negligent hiring under Alabama law. (Doc. 1.) Following discovery, the Defendants filed their Motion for Summary Judgment. (Doc. 18.)
Summary judgment is proper "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 moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the evidence] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden by presenting evidence showing that there is no genuine dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-23. In evaluating the arguments of the movant, the court must view the evidence in the light most favorable to the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
Once the movant has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting FED. R. CIV. P. 56(e)). "A factual dispute is genuine only if a `reasonable jury could return a verdict for the nonmoving party.'" Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991)).
Plaintiff alleges that she endured a hostile work environment in violation of the Title VII. Initially, the Court notes that Plaintiff brings this claim against all Defendants, not just Tacala. "[R]elief under Title VII is available against only the employer and not against individual employees whose actions would constitute a violation of the Act." Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006). Plaintiff presented no evidence that Willis and Deville were her employers. Accordingly, she cannot maintain a Title VII claim against them.
In order to prove that Tacala is liable for a hostile work environment Plaintiff must show that:
Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (quotation marks omitted). Additionally, "[o]nly conduct that is `based on' a protected category, such as [gender], may be considered in a hostile work environment analysis." Id. (citing Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 584 (11th Cir. 2000)). "Innocuous statements or conduct, or boorish ones that do not relate to the [gender] of the actor or of the offended party (the plaintiff ), are not counted." Id. (citation omitted).
The Defendants argue that Plaintiff cannot show that the conduct she complains of was severe or pervasive enough to alter the terms and conditions of her employment. A determination of whether harassment is severe or pervasive enough to alter the terms and conditions of employment includes both a subjective and objective component. Jones, 683 F.3d at 1299. "The burden is on [P]laintiff to demonstrate that [s]he perceived, and that a reasonable person would perceive, the working environment to be hostile or abusive." Id. At summary judgment, the Court must accept that Plaintiff subjectively perceived that the harassment rose to this level. Id.
In determining whether a reasonable person would perceive the working environment to be hostile or abusive, a court must look at the totality of circumstances and consider, inter alia: "(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." Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002). Conduct is objectively severe when the workplace is permeated with intimidation, ridicule, and insult. Id. at 1276-77. The Supreme Court has repeatedly emphasized that simple teasing, offhand comments, and isolated incidents, unless extremely serious, will not amount to discriminatory changes in the terms and conditions of employment. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); Harris, 510 U.S. at 21-22.
With that guidance in mind, the Court considers the evidence of sexual harassment presented in the instant case. Initially, much of the conduct Plaintiff alleges does not constitute "harassing conduct" to which the totality of circumstances test can be applied.
After resolving all reasonable doubts in favor of Plaintiff, it is clear that Willis' comments and actions were isolated and only occurred on a few occasions. The Eleventh Circuit considers an incident a week to be sufficiently frequent to bolster a plaintiff's case but considers an incident every two months to be insufficiently frequent to do so. Compare Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 509 (11th Cir. 2000) (fifteen instances in four months "was not infrequent") with Mendoza v. Borden, Inc., 195 F.3d 1238, 1249 (11th Cir. 1999) (en banc) (five inappropriate instances in eleven months were "far too infrequent" to support a sexual harassment claim) and Gupta, 212 F.3d at 579, 584-85 (eight instances of touching, partial exposure, staring and complimenting in six or seven months, plus repeated invitations to lunch during the same period, was not frequent). Here, Plaintiff alleges no more than nine instances of verbal sexual harassment over a ten month period. Since the frequency in Gupta exceeded one incident a month, the frequency of conduct in this case does not support Plaintiff's claim.
Additionally, Willis' sexual comments did not permeate the workplace with intimidation, ridicule, and insult. Willis never physically threatened Plaintiff. In fact, Plaintiff admits that he never touched her in a sexual manner. (Pla. Depo. 92:17-20.) Accordingly, the Court has considered the effect of these acts on the working environment, "in context, not as isolated acts," Mendoza, 195 F.3d at 1246, and finds that, in their totality, the alleged incidents do not satisfy the Eleventh Circuit's "baseline" for severity or pervasiveness that is required to survive summary judgment. Id. at 1244. Thus, Plaintiff's hostile work environment claim is due to be dismissed.
Plaintiff alleges that she was retaliated against in violation of Title VII for making complaints of sexual harassment. As previously mentioned, Plaintiff cannot maintain a Title VII claim against Willis or Deville because there is no evidence that they were her employers. See Dearth, 441 F.3d at 933. However, she may be able to maintain a retaliation claim against Tacala.
Because Plaintiff is relying exclusively on circumstantial evidence, the burden of proof in her retaliation claim is governed by the Mcdonnell-Douglas framework. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). The Mcdonnell-Douglas framework first "requires the plaintiff to create an inference of [retaliation] through her prima facie case." Springer v. Convergys Customer Management Group, Inc., 509 F.3d 1344, 1347 (11th Cir. 2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for its actions. McDonnell Douglas, 411 U.S. at 802; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the employer meets this burden, the plaintiff must show that the proffered reasons were pretextual. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
Tacala maintains that it is entitled to summary judgment because Plaintiff cannot establish a prima facie case of retaliation, and even if she could, Tacala has a legitimate, non-retaliatory reason for its actions.
"A plaintiff establishes a prima facie case of retaliation by showing that: (1) she `engaged in statutorily protected activity'; (2) she `suffered a materially adverse action'; and (3) `there was a causal connection between the protected activity and the adverse action.'" Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (citing Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010)) (emphasis added). Tacala argues that Plaintiff cannot show that she engaged in protected activity, suffered a materially adverse action, or that there was a causal connection between any protected activity and adverse action.
The Eleventh Circuit has described protected activity under Title VII as follows:
E.E.O.C. v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). To demonstrate that she engaged in a protected activity under the opposition clause, Plaintiff "must show that she `had a good faith, reasonable belief that the employer was engaged in unlawful employment practices.'" Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1312 (11th Cir. 2002) (quoting Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)). "It . . . is not enough for a plaintiff to allege that [her] belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable." Little, 103 F.3d at 960.
In this case, Plaintiff's EEOC charge is protected by the participation clause of Title VII, as is her questionnaire. See Eastland v. Tennessee Valley Authority, 704 F.2d 613, 627 (11th Cir. 1983) (noting that contacting an EEO officer is protected activity). Further, Plaintiff's questionnaire is protected by the opposition clause of Title VII because her belief that she was being sexually harassed was objectively reasonable in light of Willis' purported comments.
However, none of her other complaints constitute protected activity under the participation clause because they occurred as part of Tacala's internal, in-house investigation, conducted apart from a formal charge with the EEOC. Moreover, none of her other complaints constitute protected activity under the opposition clause because there is no evidence that Plaintiff "explicitly or implicitly communicate[d] a belief that the [conduct she complained about] constitute[d] unlawful employment discrimination." EEOC Compl. Man. (CCH) §§ 8-II-B(2) (2006); see Crawford v. Metro. Gov't, 555 U.S. 271 (2009) (using the EEOC manual in interpreting the opposition clause of the antiretaliation statute). Plaintiff's July 28, 2010, message with Tacala's Director of Employee Administration did not mention sexual harassment, or any unlawful treatment, and did not identify either Willis or Deville. (Pla. Depo. 99:17-100:22.) Plaintiff's July 30, 2010, statement made no reference to sexual harassment by Willis or anyone else. (Gisin Dec., ¶ 9.d; Doc. 23-1, ¶ 3.) Further, Plaintiff has presented no evidence that she ever verbally communicated her complaints about Willis' sexual harassment to Tacala.
A materially adverse employment decision for purposes of retaliation only requires that the employer's actions "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). In speaking of material adversity, the Supreme Court felt it "important to separate significant from trivial harms." Id. The Court went on to stress that the exercise of protected activity does not "immunize [an] employee from those petty slights or minor annoyances that often take place at work that all employees experience." Id. This Court's determination of whether the Defendants' actions were materially adverse is inherently fact-specific and "depend[s] upon the particular circumstances" of the case. Id. at 69. See also Crawford v. Carroll, 529 F.3d 961, 973 n.13 (11th Cir. 2008) (noting that Burlington Northern "strongly suggests that it is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered `materially adverse' to him and thus constitute adverse employment actions").
Plaintiff claims that the following events constitute materially adverse actions: (1) on July 28, 2010, Willis told Plaintiff that Deville did not like her hair and that she was terminated and (2) during the fall of 2010, Willis sent Plaintiff home when the restaurant was overstaffed more frequently. These events satisfy the Burlington Northern standard for materially adverse employment action. Terminating an employee is certainly a materially adverse employment action. Moreover, Willis reduced Plaintiff's hours by two every day. (Pla. Depo. 118:7-13.) Plaintiff worked four days every week. (Id. 173:7-12.) This would effectively cut eight hours out of Plaintiff's work week. Plaintiff was originally only working twenty-four hours each week. (Id. 173:13-19.) For an hourly employee, cutting one-third of their hours is substantial, and could dissuade a reasonable employee from filing a charge of discrimination with the EEOC.
The Eleventh Circuit has described the causal connection requirement as follows:
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2011).
In this case, the only protected activity Plaintiff participated in was her EEOC activity, commenced in September of 2010. Plaintiff's allegations that she was terminated on July 28, 2010, cannot be causally related to Plaintiff's EEOC charge because no one at Tacala could have had knowledge that Plaintiff engaged in protected conduct. See Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (citation omitted). However, there is a causal connection between Plaintiff being sent home early in the fall of 2010 and her EEOC activity. Plaintiff contends that Willis, who sent Plaintiff home on several occasions when the restaurant was overstaffed, stated that "[s]omeone has filed a sexual harassment case on me. I don't know who it is, but I'm going to find out." (Pla. Depo. 123:20-126:2.)
Because Plaintiff has met her burden of demonstrating a prima facie case based on the reduction of Plaintiff's working hours, the burden shifts to Tacala to articulate a legitimate, non-retaliatory reason for its actions. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 253. Tacala contends that Plaintiff was "sent home early on a few occasions when the restaurant was overstaffed." (Doc. 19 at 24.) Accordingly, Tacala has articulated a legitimate, non-retaliatory reason for sending Plaintiff home early, and Plaintiff must now show that the proffered reason was pretextual. Hicks, 509 U.S. at 511.
To establish pretext, Plaintiff must "demonstrate that the proffered reason was not the true reason for the employment decision." Jackson v. State of Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005). "A reason is not pretext for [retaliation] unless it is shown both that the reason was false, and that [retaliation] was the real reason." Brooks v. County Comm'n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quotation marks and citation omitted). Plaintiff can meet her burden "either directly by persuading the court that a [retaliatory] reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. When determining whether Tacala's proffered reason for sending Plaintiff home early was pretextual, it is the motive of the decisionmaker-Willis in this case-in selecting Plaintiff more frequently that is at issue. See Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989).
Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could infer that Willis harbored a retaliatory animus based on his statement that he was "going to find out" who filed a sexual harassment case against him. (Pla. Depo. 123:20-126:2.) Further, a reasonable jury could find that a retaliatory reason more likely motivated Willis in selecting Plaintiff to go home early because he was clearly aware that it was Plaintiff who complained based on his conversation with her (Id. 129:3-8), and he selected Plaintiff to go home early more frequently only after this conversation. (Id. 129: 18-22.) Accordingly, there is sufficient circumstantial evidence from which a jury could reasonably infer that Tacala's articulated reasons are a pretext for retaliation.
Plaintiff alleges that the Defendants' conduct caused her emotional distress. Concerning the tort of intentional infliction of emotional distress, or outrage, the Supreme Court of Alabama has held:
Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000). In determining whether the alleged conduct was extreme and outrageous, "plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind." Surrency v. Harbison, 489 So.2d 1097, 1105-06 (Ala. 1986) (quoting Restatement (Second) of Torts, § 46, Comment (d) (1965)).
In this case, Plaintiff has alleged that Willis made several inappropriate comments to her (Pla. Depo. 81:14-23, 88:10-15, 90:12-91:11, 157:18-22), attempted to terminate her because of her hair style (Terry Depo. 44:20-45:13), and sent her home more frequently in retaliation for filing a complaint against him. (Id. 129: 18-22.) However, Plaintiff admits that Willis never touched her in a sexual manner. (Id. 92:17-20.) These allegations wholly fail to establish conduct "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society."American Road Service Co. v. Inmon, 394 So.2d 361, 365 (Ala. 1980). See also O'Rear v. B.H., 69 So.3d 106 (Ala. 2011) (outrage judgment affirmed where family physician provided teenage boy with addictive prescription drugs in exchange for sex); Busby v. Truswal Systems Corp., 551 So.2d 322 (Ala. 1989) (outrage claim cognizable where supervisor made several inappropriate sexual comments and gestures to plaintiffs, attempted to follow one of the plaintiffs into the restroom to "help her," followed another plaintiff one night, openly stared at the plaintiffs' sexual anatomy, and put his arm around the plaintiffs, grabbed their arms, and stroked their necks). While sexual harassment is inappropriate in the workplace and has no place in civilized society, the comments purportedly made by Willis cannot be said to "go beyond all possible bounds of decency." Surrency, 489 So. 2d at 1105-06.
Plaintiff claims that the Defendants were negligent in hiring Willis. However, because the evidence clearly demonstrates that only Tacala hired Willis, this claim may only be brought against Tacala. To establish a negligent hiring claim, Plaintiff must show "by affirmative proof that the alleged incompetence of the employee was actually known to the employer or was discoverable by the employer if it had exercised care and proper diligence." Portera v. Winn Dixie, 996 F.Supp. 1418, 1437 (M.D. Ala. 1998). See Gilmer v. Crestview Mem. Funeral Home, Inc., 35 So.3d 585, 596 (Ala. 2009) ("To prove a claim of negligent [hiring], a plaintiff must show that the employer knew, or in the exercise of ordinary care should have known, that its employee was incompetent."); Rhodes v. Arc of Madison County, Inc., 2013 WL 366176 (N.D. Ala. Jan. 25, 2013) ("Thus, the requirement that a defendant have actual or constructive knowledge of an employee's unfitness applies to claims for negligent hiring.").
Plaintiff has not provided sufficient evidence to establish that Tacala knew or should have known that prior complaints of sexual harassment had been made against Willis. Moreover, Plaintiff admits she has no knowledge about whether anyone ever alleged that Willis had engaged in sexual harassment or misconduct at any of his prior places of employment. (Pla. Depo. 137:21-139:11.) Although Plaintiff heard that Willis was terminated from Ryan's restaurant for getting into a fight (Id. 138:8-15), this does not relate to sexual harassment—Willis' underlying wrongful conduct. See Voyager Ins. Companies v. Whitson, 867 So.2d 1065, 1073 (Ala. 2003) ("A party alleging negligent. . . hiring must also prove the underlying wrongful conduct of employees."); Jones Exp., Inc. v. Jackson, 86 So.3d 298, 305 (Ala. 2010) ("[I]mplicit in the tort of negligent hiring, retention, training, and supervision is the concept that, as a consequence of the employee's incompetence, the employee committed some sort of act, wrongdoing, or tort that caused the plaintiff's injury.").
For the aforementioned reasons, the Defendants' Motion for Summary Judgment is due to be GRANTED in part and DENIED in part. The Defendants' request to dismiss Plaintiff's hostile work environment, emotional distress, and negligent hiring claims, and Willis and Deville's request to dismiss Plaintiff's retaliation claim is due to be GRANTED. Tacala's request to dismiss Plaintiff's retaliation claim is due to be DENIED. The only claim remaining will be Plaintiff's Title VII retaliation claim against Tacala. A separate order consistent with this opinion will be entered.
Next, Plaintiff argues that she was harassed because Willis would apparently hide employment applications in the trunk of his car, and only provide them to young females who inquired about employment at Taco Bell. (Terry Depo. 48:18-22.) However, Plaintiff has presented no evidence that she was aware of this hiring tactic, that it was directed at her, and this conduct would only constitute harassment based on Plaintiff's age, not her gender. See Buckhanon v. Huff Ft Associates Const. Co., Inc., 506 F.Supp.2d 958, 966 (M.D. Ala. 2007) (finding that testimony of witness to racial slurs and derogatory comments by supervisor was irrelevant to hostile work environment claim where plaintiffs testified that they were not aware of the supervisor's comments).
Finally, Plaintiff argues that Tacala created a hostile work environment when it failed to address her sexual harassment complaint. However, it is undisputed that Tacala's human resources department performed an investigation in July of 2010, and there is no evidence that Plaintiff or any other employee reported sexual harassment to Tacala. Thus, Tacala's failure to address Plaintiff's complaints cannot be based on a protected category under Title VII.
