ABDUL K. KALLON, District Judge.
Jermaine Pullom and John Timothy Waldrep allege multiple claims against their former employer, Greater Birmingham Transportation Services, L.L.C. d/b/a Yellow Cab ("GBTS"). Specifically, Pullom asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 for race-based harassment (Counts I and III) and retaliation (Counts II and IV), Title VII claims for sexual harassment and retaliation (Counts V and VI), and a state law claim for negligent and wanton supervision, training, and retention (Count IX), against GBTS. Waldrep asserts a Title VII retaliation claim for opposing sexual harassment against GBTS (Count X), and state law claims for assault and battery against GBTS and Keith Van Petty, his former supervisor (Count XIII), and negligent and wanton supervision, training, and retention against GBTS (Count XIV).
Presently before the court are defendants' motion for summary judgment, doc. 27, and plaintiffs' motion for partial summary judgment, doc. 28.
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to the non-moving party, who is required to go "beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324 (internal citations and quotation marks omitted). A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable 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 (1970); see also Anderson, 477 U.S. at 244 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual dispute will be resolved in the non-moving party's favor when sufficient competent evidence supports that party's version of the disputed facts. But see Pace v. Capobianco, 238 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, "[a] mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that a jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Pullom, who is male and African-American, worked for GBTS as a porter. Doc. 27-3 at 10. During Pullom's employment, Van Petty, Pullom's immediate supervisor, allegedly made sexual advances toward Pullom "[n]umerous" times, beginning "shortly after [Pullom] started working there" in May 2012. Id. at 11-12. The first incident occurred during a work trip, when Van Petty purportedly asked Pullom if he wanted to "take a walk on the wild side." Id. at 13. The second incident occurred when Pullom was "bent over in a car helping one of the mechanics," and Pullom's "pants [were] down," and Van Petty "told [Pullom] to pull [his] pants up before [Van Petty] [stuck] something back there." Id. at 14. On another occasion, when Van Petty encountered Pullom in the restroom, Van Petty told Pullom to quit "jacking off" and asked if Pullom "need[ed] some help with it." Id. Van Petty also twice remarked to Pullom, in June and October of 2013, that Pullom "would not know if [Van Petty] was a man or a woman" if Van Petty "took his dentures out." Id. at 17-18. Pullom did not report these comments to anyone in management, except perhaps Susan Whiddon and Mark Little.
Van Petty also made race-based remarks. For example, Pullom heard Van Petty state that "he's never done a black guy but he'll do a light skinned guy." Id. at 15. Moreover, when Pullom rode in the car with Van Petty, "if [Van Petty] [was] driving behind a black female and [she] [was] not driving fast enough, [Van Petty] [would] refer to [her] as a nappy-headed hoe or a nappy-headed bitch." Id. at 19-20. Additionally, on occasions when Pullom and Van Petty drove together to predominantly African-American neighborhoods to repossess taxi cabs, Van Petty would tell Pullom, "let[`]s go down here where your people at, you're better to deal with your people down here in the hood." Id. at 21. Finally, after Pullom assisted Paige Coker, GBTS's Vice President, with some personal tasks, Van Petty referred to Pullom as Coker's "house nigger." Id.
The last comment is the only racial slur Pullom reported to management. Id. at 20. According to Pullom, "Ms. Coker told me that she talked to Mr. Houston [GBTS's President and owner] and I wouldn't have no more problems out of [Van Petty]." Id. at 21. A few months later, on December 4, 2013, Coker discharged Pullom "per Mr. Houston" purportedly because Pullom worked on his personal vehicle at the shop without permission. Id. at 22.
Waldrep, who is male, worked for GBTS as a service man from October or November 2012 through August 2013, and later as a heavy line mechanic from June 2014 through September 21, 2014. Doc. 1 at 6. Waldrep claims that Van Petty sexually harassed him during Waldrep's first stint of employment. Allegedly, Van Petty affixed pictures of male genitalia to Waldrep's toolbox twice. Doc. 27-4 at 11. On another occasion, Van Petty purportedly told Waldrep, "pull your britches up, boy, before I stick something in you." Id. at 14. Van Petty also stuck an "air hose" inside Waldrep's shirt while threatening to "stick something" in Waldrep. Id. Waldrep resigned due to this purported conduct, id. at 11, albeit without complaining about this conduct to anyone in management. See docs. 27-4 at 11 (claiming he reported the conduct to Mark Little, who did not have the title of "supervisor" "at the time"); 30-11 at 10 (Little's testimony that he was "the same thing [Waldrep] was, a heavy line mechanic," at the time).
Waldrep returned to GBTS in June 2014 after Little, who by then was a shop supervisor, see doc. 30-11 at 12, assured Waldrep that he would not have to deal with Van Petty, doc. 27-4 at 13. However, when Waldrep returned, Van Petty was "still in the office in the shop." Doc. 27-4 at 13. On August 28, 2014, after Van Petty directed an "mmm, mmm, mmm" noise at Waldrep, Waldrep reported this incident to GBTS's bookkeeper, Tammy Phillips, and also told Phillips that Van Petty had taped pictures of male genitalia to Waldrep's toolbox during Waldrep's first employment stint. See doc. 27-4 at 17.
Sometime after this complaint, Van Petty directed the "mmm, mmm, mmm" sound toward Waldrep again, and Waldrep again complained to Phillips. Id. According to Phillips, Waldrep told her also that if GBTS discharged him, he would submit the genitalia pictures to the Equal Employment Opportunity Commission to assist Pullom with his pending harassment case against GBTS. See doc. 30-10 at 10. After this conversation, Phillips informed Coker, who was off-site at the time, that Waldrep had threatened the company with disclosure of the pictures. See doc. 30-8 at 37. When Coker shared this alleged threat with Houston, Houston instructed Coker to discharge Waldrep immediately. Coker, in turn, conveyed the directive to Little, id. at 32, who met with Waldrep and discharged him for "insubordination" for using his cell phone while working on vehicles, doc. 24-4 at 18. Allegedly, Little added that the real reason was "something about going to Tammy about the pictures that were on [his] toolbox." Id.
The analysis is divided into two primary parts. In Section A, because it is a threshold issue that concerns this court's jurisdiction, the court will address plaintiffs' motion for partial summary judgment as to GBTS's affirmative defense that it employed less than 15 individuals and, therefore, was not an "employer" under Title VII. See doc. 28. Because the court finds that plaintiffs have established that GBTS is an "employer" under Title VII, in Section B, the court will address GBTS's motion for summary judgment.
In its seventh affirmative defense, GBTS states: "These Defendants deny that [GBTS] has the requisite number of employees to be subject to the federal statutory claims made the basis of Plaintiffs' complaint." Doc. 6 at 18. "In the Eleventh Circuit, the issue of whether an employer has fifteen Title VII `employees' is a `jurisdictional' question: [A] plaintiff must show that her `employer' had fifteen or more employees for the requisite period provided under the statute before her Title VII claims can be reached." Laurie v. Ala. Court of Crim. Appeals, 256 F.3d 1266, 1271 (11th Cir. 2001) (citation and internal quotation marks omitted). Plaintiffs attempt to make this showing under the "single employer" or "integrated enterprise theory,"
"The predominant trend in determining whether two businesses should be treated as a single or joint employer under [42 U.S.C.] § 2000e(b) is to apply the standards promulgated by the National Labor Relations Board (NLRB)." McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir. 1987). Based on the NLRB factors — (1) common ownership, (2) common management, (3) interrelation of operations, and (4) common control of labor relations, id. — which the court addresses below, plaintiffs have met their burden of showing single or joint employer status.
There is sufficient evidence to find that GBTS and the other entities had overlapping ownership during the relevant period. Specifically, Houston owned a 60% interest, Martin Zilber owned a 35% interest, and Paige Coker owned a 5% interest in GBTS and Greater Little Rock. Doc. 27-5 at 6, 9. Houston also owned a 34% interest in Gulf Coast Transit, along with Zilber, who owned 32%, and Michael Levine, who owned 34 percent. Id. Houston, Zilber, and Levine also owned "similar" percentages in Winston-Salem Yellow Cab. Id. at 23-24.
This factor looks to whether the various entities share common officers and directors. See McCulley v. Allstates Tech. Servs., No. 04-0115-WS-B, 2005 U.S. Dist. LEXIS 41550, at **117-18 (S.D. Ala. June 21, 2005). See also Harriel v. Dialtone, Inc., 179 F.Supp.2d 1309, 1312 (M.D. Ala. 2001) (a jury could infer common management when same individual "serve[d] as President [of one entity] while also involving himself in the day-to-day aspects of [the other entity]"); Stockett v. Tolin, 791 F.Supp. 1536, 1551 (S.D. Fla. 1992) ("that the same persons. . . essentially managed and supervised the different entities, and that the companies had common officers and boards of directors, is evidence of the kind of common management that supports [this] prong of the [integrated enterprise] test"). Relevant here, Houston served as president and/or managing partner of GBTS, Greater Little Rock Transportation, Gulf Coast Transit, and Winston-Salem Yellow Cab, and served on two- or three-person "Grievance Committees" that addressed personnel issues for each of these entities. Docs. 29 at 22; 27-5 at 12, 15, 17, and 24. See also doc. 27-5 at 6, 9, 23-24 (Houston's testimony that he was "managing partner" of GBTS, Little Rock Transportation, Gulf Coast Transit, and Winston-Salem Yellow Cab). Also, GBTS Vice President Paige Coker testified that she spent "50 percent" of her time traveling to manage the Little Rock and Gulf Coast offices. Doc. 30-8 at 8. This evidence is sufficient to find common management.
The record also supports a finding of an interrelation of operations. Among other things, (1) "all of the calls for each of the market areas . . . were handled through the dispatch center of Greater Little Rock by approximately thirty (30) call takers and dispatchers employed by Greater Little Rock," doc. 29 at 20.
The final factor "looks at which company has the power to hire and fire employees and control employment practices." See Guaqueta v. Universal Bevs., L.L.C., No. 09-21576-CIV-O'SULLIVAN, 2010 U.S. Dist. LEXIS 69660, at *20 (S.D. Fla. July 13, 2010). See also Fike v. Gold Kist, Inc., 514 F.Supp. 722, 727 (N.D. Ala. 1981) ("[T]he `control' required to meet the test of centralized control of labor relations is not potential control, but rather actual and active control of day-to-day labor practices."). As evidence of shared control of labor relations, plaintiffs point to Houston and Coker's roles on most of the entities' Grievance Committees, and that the various entities operated under the same written "Personnel Policies." See doc. 30-1 at 18.
Based on this record, when considering all of the NLRB factors together, the court concludes that GBTS operated as a "single employer" or "integrated enterprise" along with Greater Little Rock Transportation, Gulf Coast Transit, and Winston-Salem Yellow Cab during the relevant time period. Because GBTS and these affiliated entities had a combined number of more than 15 employees during the relevant period, see docs. 30-3 at 22; 30-4 at 73; 30-1 at 25, this court has jurisdiction over plaintiffs' Title VII claims.
GBTS and Van Petty seek summary judgment as to all claims.
During Pullom's 19 month employment period, Van Petty subjected Pullom to the following racially offensive comments: (1) that he has "never done a black guy" but might "do a light skinned guy," (2) that slow-driving African-American women are "nappy headed hoes" or "nappy headed bitches," (3) that Pullom needed to go with Van Petty to "where [Pullom's] people [were] at" in the "hood" to repossess taxis, and (4) that Pullom is Coker's "house nigger." Although these alleged comments are offensive, under current law, four comments spread out over 19 months fail to rise to the severe and pervasive level necessary for a hostile environment claim.
Although Pullom only recounts four specific incidents in his deposition,
Because Van Petty was a supervisor, GBTS can avoid liability if it can plead the affirmative defense outlined in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) — i.e., assuming that there was no tangible employment action, that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and that Pullom unreasonably failed to take advantage of any preventative or corrective opportunities GBTS provided or to avoid harm otherwise. See Faragher, 524 U.S. at 807. Relevant here, although an employer may show "reasonable care" through the dissemination of a sexual harassment policy,
Pullom alleges next that GBTS discharged him in retaliation for complaining about Van Petty's conduct. Doc. 1 at 13, 17, 21. To prove a causal connection between his discharge and the complaints, Pullom relies solely on the purported temporal proximity between his complaint to Coker about the racial slur and his discharge. See doc. 34 at 37. However, "temporal proximity, without more, must be very close in order to satisfy the causation requirement." Jones v. Gulf Coast Health Care of Del., L.L.C., 854 F.3d 1261, 1271-72 (11th Cir. 2017) (emphasis added). Here, GBTS discharged Pullom on December 4, 2013, and his only complaint to management (Coker) about Van Petty's race-based remarks occurred "maybe some months before [Pullom] was terminated." Doc. 27-3 at 21. A three to four month gap between the protected conduct and an adverse employment action is too remote to establish causation. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Therefore, because Pullom fails to show a sufficiently close time span between his complaint and his discharge, and Pullom does not present any other evidence of causation, his prima facie case fails.
Alternatively, even if Pullom can make a prima facie case, his retaliation claims fail because he cannot rebut GBTS's articulated reason for his discharge — i.e., that "Pullom was terminated for working on his personal vehicle in the GBTS shop on a Saturday without permission from management." Doc. 27 at 31. Pullom acknowledges that it was "not appropriate" to work on his personal vehicle without "permission from [a] supervisor." Doc. 27-3 at 23. However, Pullom contends that he complied with the rules by obtaining permission from Mark Little. Id. Unfortunately for Pullom, when Houston asked Little about the incident, Little reported that he "didn't [give Pullom permission]."
Waldrep alleges that GBTS discharged him in retaliation for his complaints to Tammy Phillips about the pictures of male genitalia Van Petty left on Waldrep's toolbox and for stating that he would assist Pullom with his claims against GBTS if GBTS discharged Waldrep. See docs. 1 at 29; 34 at 33-35. In support of his claim, Waldrep contends that although Mark Little initially cited "insubordination" as the reason for the discharge, after Waldrep pressed Little about "what [he] [was] actually being fired for," Little added that "you went to Tammy [Phillips] about the pictures of the tool —that Keith put on your tool box . . . ." Doc. 27-4 at 18. Although GBTS asserts that "the decision to terminate Waldrep was made before he allegedly complained about any alleged sexual harassment," doc. 27 at 30, and that it discharged Waldrep for legitimate reasons, in light of the direct evidence of retaliation Waldrep presents, it is for a trier of fact to weigh the evidence and make credibility determinations, and ultimately decide whether GBTS discharged Waldrep for retaliatory reasons or for alleged insubordination. See Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990) (direct evidence of retaliation when "actions or statements of an employer reflect[] a . . . retaliatory attitude correlating to the discrimination . . . complained of by the employee"). Accordingly, GBTS's motion as to Waldrep's retaliation claim is due to be denied.
5.
Waldrep also pleads an assault and battery claim for the incident where Van Petty placed an air hose under Waldrep's shirt while threatening to "stick something in" Waldrep. See docs. 1 at 7; 27-4 at 14. Based on the court's reading of Alabama law, contrary to defendants' contention, Waldrep does not have to show that the touching was "rude or angry" to plead a valid claim. See doc. 27 at 38. Rather, Waldrep must show only that the touching was "conducted in a harmful or offensive manner." Ex parte Atmore Community Hosp., 719 So.2d 1190, 1193 (Ala. 1998). Because a reasonable person could find that the touching was offensive and not mere horseplay, Van Petty's motion as to the assault and battery claim is due to be denied.
GBTS is due summary judgment on the claim against it. To hold GBTS liable for Van Petty's battery, Waldrep must show that GBTS ratified or condoned Van Petty's conduct. Ratification requires that Waldrep prove that "the employer has actual knowledge of the tortious conduct; (2) based on this knowledge, the employer knew the conduct constituted a tort; and (3) the employer failed to take adequate steps to remedy the situation." Ex parte Atmore Community Hosp., 719 So. 2d at 1195. Waldrep has failed to establish that GBTS had actual knowledge of Van Petty's tortious conduct and failed to prevent it from recurring. Relevant here, Waldrep testified that he never reported Van Petty to anyone in management during his first employment stint when this incident occurred. See doc. 27-4 at 15 (Q: "[D]id you make a complaint to anybody in management about —"; A: "No, sir, I never talked to anybody but Mark [Little]
In Count IX, Pullom alleges that GBTS "negligently and/or wantonly failed to adequately supervise and train and negligently and/or wantonly retained Petty, Phillips, Little, Coker, and/or other members of management," which "proximately caused Petty's sexual harassment of [Pullom], racial harassment of [Pullom], unlawful retaliation against [Pullom], invasion of [Pullom's] privacy, and acts of outrage against [Pullom]." Doc. 1 at 27. Waldrep likewise alleges in Count XIV that GBTS "negligently and/or wantonly failed to adequately supervise and train and negligently and/or wantonly retained Petty, Phillips, Little, Coker, and/or other members of management," which "proximately caused the unlawful retaliation against [Waldrep], invasion of [Waldrep's] privacy, acts of outrage against [Waldrep], and assault and battery of [Waldrep]." Id. at 37.
As an initial matter, because "a party alleging negligent supervision . . . must prove the underlying wrongful conduct," Univ. Fed. Credit Union v. Grayson, 878 So.2d 280, 291 (Ala. 2003), and plaintiffs have withdrawn their invasion of privacy and outrage claims, see doc. 34 at 41 n.22, the negligent and/or wanton supervision, training, and retention claims based on these torts fail. Thus, although it is an onerous task to discern precisely what plaintiffs are alleging in Counts IX and XIV, see doc. 1 at 27, 37 (referencing the factual predicate for these claims: "[a]s set out in detail above"),
Because, as stated above, plaintiffs must first prove the underlying conduct by GBTS's servants, see Grayson, 878 So. 2d at 291, and the court previously determined that Pullom's racial harassment and retaliation claims fail, these alleged torts cannot serve as a basis for Pullom's negligent and/or wanton supervision, training, and retention claim against GBTS. As to the sexual harassment claim, although "the manner in which a sexual-harassment complaint is handled when sexual harassment has . . . occurred could form the basis for a claim for negligent or wanton supervision," Stevenson v. Precision Std., Inc., 762 So.2d 820, 825 (Ala. 1999), Pullom last complained about Van Petty's sexual harassment to a "coworker," Debbie Davis, at some unspecified time between July 2012 and the "summer" of 2013, see doc. 27-3 at 13-17. In other words, at best, the latest date Pullom complained was August 2013, which was more than two years prior to the filing of the complaint.
Waldrep's negligence and/or wantonness claims also fail. First, Title VII retaliation cannot serve as an underlying tort for an Alabama negligent and/or wanton training, supervision, and retention claim. See Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314, 1320 (N.D. Ala. 2002) (citing Stevenson, 762 So. 2d at 824) ("In order to establish a claim against an employer for negligent supervision, training, and/or retention, the plaintiff must establish that the allegedly incompetent employee committed a common-law, Alabama tort.") (emphasis added); see also Trainer v. Supreme Bev. Co., No. 2:11-cv-00057-WMA, 2013 U.S. Dist. LEXIS 3911, at *19 (N.D. Ala. Jan. 10, 2013) ("[T]he underlying wrongful conduct must be a common-law, Alabama tort committed by the employee, not [] a federal cause of action such as Title VII.") (internal quotation marks omitted). Second, the negligence or wantonness claim related to the assault and battery also fails, because it is time-barred. More specifically, the assault and battery occurred sometime shortly after Waldrep began his first employment stint with GBTS, and Waldrep never reported this incident to anyone in management. See doc. 27-4 at 14-15.
For these reasons, Pullom's and Waldrep's negligence and/or wantonness claims are due to be dismissed as untimely and/or on the merits.
In accordance with the foregoing, plaintiffs' partial motion for summary judgment, doc. 28, is
Pullom also reported the comments to Tammy Phillips and Jeff Johnson (Pullom does not describe their positions in his deposition) and Debbie Davis (whom Pullom described as "basically a coworker" who was "no part of management or nothing," doc. 27-3 at 15). See id. at 13 (reported "walk on the wild side" remark to Tammy, Susan, Mark, Jeff, and Debbie; "I asked them was this going to keep on taking place. I mean, I was told that they was going to refer to Mr. Houston about the situation."), 14 (reported "stick[] something back there" comment to Susan, who purportedly stated that she would talk to Mr. Houston), 15 (reported "jacking off" remark to Debbie Davis), 17 (Mark Little witnessed June 2013 "wouldn't know if [Van Petty] was a man or a woman" remark, 18 (no witnesses to October 2013 "wouldn't know if [Van Petty] was a man or a woman" remark).
Also, plaintiffs seek to demonstrate that the eighty drivers that worked for GBTS were employees, rather than independent contractors. However, because the court finds that GBTS and the related entities constituted a "single employer" or "integrated enterprise," the court will not address this alternative argument. As a result, the motion to strike the affidavit of Ellis Houston, doc. 38, is
