L. SCOTT COOGLER, District Judge.
In this action, Plaintiffs Ragan Livingston ("Ragan") and her husband Mitch Livingston assert claims against Marion Bank and Trust Co. and its president, Conrad Taylor ("Defendants"), alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Alabama state law. The Magistrate Judge entered a report and recommendation recommending that Defendants' motion for summary judgment (doc. 44) be granted in part and denied in part. (Doc. 56.) No objections were filed. The Court has considered the entire file in this action, including the report and recommendation, and has reached an independent conclusion that the report and recommendation is due to be adopted and accepted.
The Court does note that as to Ragan's claim in Count 3 of the complaint for "gender discrimination" against defendant Marion Bank and Trust Co. ("the bank"), the Magistrate Judge recommended granting summary judgment in favor of the bank on this claim because Ragan offered no response to the bank's argument that it is entitled to summary judgment, so she has abandoned the claim. That may be true, but this Court is also required to consider the merits of the bank's argument. See United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Florida, 363 F.3d 1099, 1101-02 (11th Cir.2004) (Because "the district court cannot base the entry of summary judgment on the mere fact that it is unopposed, it must consider the merits of the motion."); James Wm. Moore et al., Moore's Federal Practice, § 56.99[b] (3d ed. 1997) (The court "may neither grant nor deny summary judgment by default."); Fed. R.Civ.P. 56 advisory committee's note ("[S]ummary judgment cannot be granted by default even if there is a complete failure to respond to the motion, much less when an attempted response fails to comply with Rule 56(c) requirements.").
Ragan's gender discrimination claim is based on alleged differences in her "work environment, training, promotion, job assignments, job pay, and terms and conditions of employment." (Complaint at ¶ 35.) The Court has reviewed the record and agrees with Defendants that it contains no evidence regarding gender-based disparate treatment with respect to Ragan's training, promotion, job assignments, and job pay. Ragan was replaced by another female employee, Angela Holifield. (Taylor dep. 62:16-22). As such, summary judgment is due to be granted as to the bank on this claim.
Accordingly, the Court finds that the magistrate judge's report and recommendation is ADOPTED and ACCEPTED. Defendants' motion for summary judgment (doc. 44) is hereby GRANTED IN PART AND DENIED IN PART. The motion is granted as it relates to the following: (1) all Title VII claims against defendant, Conrad Taylor, individually; (2) Title VII claims against the bank for "gender discrimination" other than for creation of a hostile work environment; (3) state-law claims in Count 5 for negligent or wanton hiring, supervision, training, and retention; and (4) state-law claims in Count 9 for breach of implied contract. Those claims are hereby DISMISSED WITH PREJUDICE. Defendants' motion for summary judgment is otherwise denied.
JOHN E. OTT, United States Chief Magistrate Judge.
In this action, Plaintiffs Ragan Tolar Livingston and her husband Mitch Livingston assert claims against Marion Bank and Trust Co. and its president, Conrad
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, party is authorized to move for summary judgment on all or part of a claim or defense asserted either by or against the movant. Under that rule, the "court shall grant summary judgment 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." FED. R. CIV. PROC. 56(a). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion," relying on submissions "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the nonmoving party must "go beyond the pleadings" and show that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.
Both the party "asserting that a fact cannot be," and a party asserting that a fact is genuinely disputed, must support their assertions by "citing to particular parts of materials in the record," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. PROC. 56(c)(1)(A), (B). Acceptable materials under Rule 56(e)(1)(A) include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." In its review of the evidence, a court must credit the evidence of the non-movant and draw all justifiable inferences in the non-movant's favor. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir.2000). At summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In early February 2008, Plaintiff Ragan Tolar Livingston ("Ragan") interviewed for a job with Defendant Marion Bank & Trust ("the Bank"). (Doc. 55-1 ("Ragan Aff.") at 1
Upon her hire, Ragan was 23 years old and had been married to her husband (and co-plaintiff here) Mitch Livingston ("Mitch"), for approximately 10 months. One Saturday soon after Ragan her employment began, Taylor, who was then 62 years old, called her into his office around closing time for a private meeting to talk about Ragan and Mitch bringing into good standing certain of their accounts with the Bank. (See Ragan Aff. at 2; Ragan Dep. at 140-41). While the meeting started on that topic, Taylor began to ask Ragan personal questions about her marriage to Mitch and make disparaging remarks about him. (Ragan Aff. at 2; Ragan Dep. at 140 — 12). Several months before marrying Mitch, Ragan had given birth to a daughter by another man she had previously dated, who also happened to be Taylor's nephew. (Ragan Dep. at 26-27, 141-42). Taylor asked Ragan whether "she was in love with" with Mitch, whether she had married him "for real" or married him "for show" just "to make his nephew angry," and whether she "had ever considered divorce." (Ragan Dep. at 141; Ragan Aff. at 2). Ragan responded that "of course" she and Mitch had gotten married "for real" and that they "loved each other." (Ragan Dep. at 142; Ragan Aff. at 2).
In the period following that uncomfortable meeting, Taylor subjected Ragan to other conduct she considered sexually harassing. Also early in her employment, Ragan was in Taylor's office when he pressed her for details about her sex life, asking her "how good the sex was" with her husband, and he attempted to engage her in a discussion about sexual positions, by asking her whether Mitch would "bend[her] over" and whether she preferred "to ride on top."
Ragan also alleges that Taylor made other remarks that might be viewed as innocuous in themselves, such as regular compliments on her dress and appearance. (See Ragan Aff. at 2). Ragan acknowledges that she would have ordinarily viewed those as flattering, but she claims that Taylor's "body language, paired with the tone of his voice, always made [her] extremely uncomfortable," as he would suggestively "give [her] a slow look down with a disgusting grin, look [her] in the eyes and tell [her] that [she] looked especially nice." (Id. at 2-3; see also Ragan Dep. at 186-88). Ragan further suggests that she was put off by such compliments because of other, more overt, sexually vulgar and demeaning remarks and inquiries that Taylor made.
In particular, Ragan claims that her work environment became more hostile following an episode in May 2008. By that
Ragan further claims that in the wake that discussion, Taylor would taunt her about claiming to have been raped. (Regan Dep. at 169-71, 212-14; Ragan Aff. at 5). Typically, Ragan says, any time that the name of the customer or a member of his family would come up on her past-due journal or otherwise in the Bank's business, Taylor would ask her rhetorically whether the customer was the one that she said had raped her. Taylor allegedly made "many, many references similar to that," sometimes in the presence of others, including once in front of the mayor of Marion. (Regan Dep. at 169-72, 212-14). On some those occasions, Ragan asserts, Taylor further added that "she knew she had liked it, though." (Id. at 169). Ragan claims that Taylor's "habit of constantly bringing up this particular incident in conversation, whether in the presence of others or not, was very disturbing to [her] mental state."
Ragan claims that Taylor also frequently touched her in ways that made her uncomfortable. She states, for example, that he would at times "touch [her] hair .. ., just in passing," while complimenting her appearance. (Ragan Dep. at 189). For example, Ragan recalled that just before work one morning, she and Taylor crossed paths in a stairwell, at which time he complimented her appearance and reached out and touched her hair as it hung loosely on the side of her head, in an intimate way like her husband would play with her hair. (Id.) Ragan further alleges that she and Taylor would "quite often" be looking at the same file or document, which he would use as an opportunity to "tug on [her] skirt or blouse" or put his hand "in the small of her back" in an attempt to "guide" or "draw [her] closer to him." (Ragan Aff. at 3; Ragan Dep. at 173-76). At times, she says, she would "pull away" to put space between them, to which Taylor would react by appearing "miffed." (Ragan Dep. at 174). Ragan claims that this sort of touching occurred "at least once a week." (Id. at 174-75).
On one such occasion, in late July 2008, Taylor and Ragan were alone in his office when he told her how "cute" she looked, and he "tugged at [her] blouse" so as to pull undone the tie strings securing the back of her blouse. (Ragan Aff. at 3; see also Ragan Dep. at 96-103). Ragan became embarrassed and quickly tried to leave his office. (Ragan Aff. at 3). Taylor stopped her, however, reaching out and grabbing her arm. (Id.) Then, with "a smug grin on his face," Taylor told her, "You better be careful not to let anyone see you like my office like that. The other employees will assume that we have something going on, and the other women will be jealous. Close the door and let me tie that back for you." (Id.) Ragan froze as Taylor then "took a seemingly extraordinary amount of time as he slowly tied [Ragan's] blouse back into a perfect bow." (Id.) Mortified by the incident, Ragan went to the ladies' room and cried. (Id.) Ragan suggests that she suffered similar crying spells at work on other occasions as well because of Taylor's harassment. (Ragan Aff. at 5). Eventually she became "terrified all the time" (Ragan Dep. at 147), and attempted to avoid having to discuss her past-due journal with Taylor, which led to
Ragan alleges in her affidavit that, in early September 2008, Taylor made a "remark suggesting that [she] make him happy by having sex with him."
On September 9, 2008, "less than a week" after Ragan made the complaint and threat to Taylor, he called her into his office around lunch time to discuss a past due account in her journal. (Ragan Aff. at 5). Without warning, Taylor began to make "hostile remarks" to Ragan, including "several" about her having been raped. (Id.) He told her at that time that she "carried to much emotional stress" and required her to go home immediately and take one week's vacation. (Id.) A few days later, but before her mandated week of vacation had expired, Ragan stopped by the Marion branch to check her account balance. (Id, at 5-6). When she went inside, Rayfield told her that Taylor wanted to see her. (Id. at 6). Ragan went into Taylor's office, at which time he told her that the Bank had decided to terminate her employment, supplying no further explanation. (Ragan Aff. at 6).
On October 7, 2008, Ragan filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (EEOC Charge). That resulted in a determination by the EEOC that there was reasonable cause to believe that Ragan had been subjected to unlawful sexual harassment and was then terminated
Ragan claims she was subjected to a hostile work environment based on sexual harassment in violation of Title VII. In Count Three she asserts another Title VII cause of action "gender discrimination," based on allegations that she has "been discriminated against on the basis of her sex in regard to her work environment, training, promotion, job assignments, job pay, and terms and conditions of employment." (Id. ¶ 35). Both types of claims allege violations of the substantive antidiscrimination provision of Title VII, which makes it an "unlawful employment practice... for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1).
In Count Four, Ragan alleges that she was subjected to retaliation made unlawful by Title VII. Such claim is based upon an alleged violation of 42 U.S.C. § 2000e-3(a), which provides in relevant part:
Defendants have moved for summary judgment on the Title VII claims for sex discrimination and for unlawful retaliation.
Taylor contends that he cannot be liable under Title VII for either a discrimination or retaliation theory because, among other reasons, he is not alleged to be an "employer" under the statute, which does not allow for individual liability. See Dearth v. Collins, 441 F.3d 931, 933 (11th Cir.2006); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991). While Taylor's belief that he is a target of Title VII
Ragan first claims that the Bank is liable under Title VII for allegedly subjecting her to a hostile work environment because of sex. To prove such a claim, she has the burden at trial to show
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir.2010) (en banc) (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.1999) (en banc)). The Bank argues that it is entitled to summary judgment on the ground that Ragan cannot establish either the third or fourth element above, i.e., that the harassment was because of sex or that it was sufficiently severe or pervasive to alter the terms and conditions of her employment. Those arguments are addressed in turn.
The Bank first contends that "no evidence demonstrates that the conduct Ragan [complains of] was based on her sex." (Dfts. Brief at 17). In support, the Bank emphasizes that the Eleventh Circuit has stated that
Gupta v. Florida Bd. of Regents, 212 F.3d 571, 583 (11th Cir.2000), overruled on other grounds, Crawford v. Carroll, 529 F.3d 961 (11th Cir.2008). On that score, the Bank contends that Ragan has not "alleged facts sufficient to show that Taylor's alleged comments to her were related to her gender." (Dfts. Brief at 18). The Bank acknowledges that Ragan "has alleged that Taylor complimented her on her appearance, inquired about her sex life with her husband, and on one occasion made her talk about an alleged rape." (Id.) The Bank contends, however, that such compliments, "without more, [are] not inherently related to sex" and that asking Ragan about her "sex life does not violate Title VII because the question is not gender-specific and the offense (if any) associated with such inquiry would be equally shared by both genders." (Id.) The Bank likewise argues that Ragan cannot demonstrate that the instances in which Taylor allegedly touched her were "based on her sex" because she does not claim that he "touched her breast, buttocks, vaginal area, or any other female-specific part of her anatomy." (Id.) Instead, the Bank contends, Ragan claims only "platonic contact" in which he "touched her face, hair, back, and her shirt," allegedly unaccompanied by "any sexual comments." (Id.)
On the other hand, any form of harassment that meets Title VII's statutory definition of discrimination because of sex may give rise to an actionable hostile work environment. Oncale, 523 U.S. at 79-80, 118 S.Ct. 998. The Eleventh Circuit has long recognized that a plaintiff can establish that harassment was "based on her sex" by showing "that but for the fact of her sex, she would not have been the object of harassment.'" Mendoza, 195 F.3d at 1248 n. 5 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)); see also Phillips v. Smalley Maintenance Serv., Inc., 711 F.2d 1524, 1529 (11th Cir.1983). It is typically easiest to draw that inference in male-female sexual harassment situations where the challenged conduct "involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex." Oncale, 523 U.S. at 80, 118 S.Ct. 998; see also Henson, 682 F.2d at 904. Further, in such situations, "unless there is evidence to the contrary, ... [courts] also infer that the harasser treats members of the `non-preferred' gender differently — and thus that the harasser harbors an impermissible discriminatory animus towards persons of the preferred gender." Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1246 (11th Cir.1998).
Indeed, as the Bank highlights, the Eleventh Circuit stated in Gupta that "statements and conduct must be of a sexual or gender-related nature — `sexual advances, requests for sexual favors, [or] conduct of a sexual nature,' [Mendoza, 195 F.3d] at 1245 — before it can be considered in determining whether the severe or pervasive requirement is met." 212 F.3d at 583. Courts, however, must be careful not to take that admonition too far, which could be interpreted to suggest that "sexual advances, request for sexual favors, [and] conduct of a sexual nature" are the sine qua non of what qualifies as harassment "because of sex." However, as explained below, such a construction would be contrary to United States Supreme Court precedent and earlier Eleventh Circuit decisions, both of which would trump any holding in Gupta to the extent they conflict.
Thus, while a harasser's use of sexual or gender-specific language and epithets may itself often support that such statements were sexually discriminatory, see Oncale, 523 U.S. at 80, 118 S.Ct. 998; Beckford v. Department of Corr., 605 F.3d 951, 960 (11th Cir.2010); Reeves, 594 F.3d at 809-10; Llampallas, 163 F.3d at 1246, the absence of such language does not necessarily mean that the remarks were not motivated by an unlawful animus. In the end, that approach is the only logical one. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Oncale, 523 U.S. at 80, 118 S.Ct. 998
Finally, the inquiry into whether harassment was "based on" a protected characteristic "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Jones v. UPS Ground Freight, 683 F.3d 1283, 1297 (11th Cir. 2012) (quoting Oncale, 523 U.S. at 81, 118 S.Ct. 998). Accordingly, whether an otherwise potentially ambiguous statement or incident might be reasonably construed as motivated by a prohibited animus may depend on a host of factors and circumstances, including the immediately surrounding context, the parties' prior course of dealings, local custom, and historical practices. See id., 683 F.3d at 1297-99 (finding a question of fact with regard to whether banana peels left on a truck driven by the African-American plaintiff was intended "to send a message of racial intolerance."); Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006) (rejecting the Eleventh Circuit's suggestion that a plant manager's reference to each of the African-American plaintiffs as "boy" could not be evidence of discriminatory animus unless it was "modified by a racial classification like `black' or `white.'"). "As the Supreme Court has observed, `[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.' " Reeves, 594 F.3d at 810 (quoting Oncale, 523 U.S. at 81-82, 118 S.Ct. 998). With the above legal principles in mind, the undersigned now turns to consider whether a jury could reasonably find that Taylor's alleged harassment of Ragan was because of sex.
Likely the most disturbing harassment in this case occurred in May 2008 when Taylor purportedly insisted, while he and Ragan were alone in his office, that she answer numerous pointed questions seeking a detailed description of an incident in which she claims to have been forcibly raped at knife point several years earlier. That inquisition, which appears to have had no possible legitimate purpose, was immediately followed by Taylor's announcement to Ragan that she "was not raped" and that she had "wanted it" and "enjoyed it" because, as Taylor told her, "women like to be forced." Directly related are Ragan's allegations that Taylor on multiple instances thereafter mocked her
The Bank observes that there "may be cases when a supervisor makes sexual overtures to workers of both sexes or cases where the conduct complained of is equally offensive to male and female workers," and that, in such circumstances, the harassment would not be "based upon sex because women and men are accorded like treatment." (Dfts. Brief at 17). There indeed "may be cases" in which the employer is not liable under Title VII because the harasser is shown to be an "equal opportunity harasser" that treats both genders equally badly. Holman v. Indiana, 211 F.3d 399, 403-04 (7th Cir. 2000); see also Henson, 682 F.2d at 904. However, "that conduct is egregious enough to offend the sensibilities of men as well as women cannot serve to immunize it for Title VII purposes." Hutchison v. Amateur Electronic Supply, Inc., 42 F.3d 1037, 1043 (7th Cir.1994); see also Reeves, 594 F.3d at 811-13 (even though employees of both genders were exposed to same objectionable remarks, a jury could find that such were sexually discriminatory because they included widespread use of gender-specific epithets and obscenities that would be more offensive to women); cf. Beckford, 605 F.3d at 960 (holding that a jury could find that the practice of prison inmates openly masturbating toward female prison staff was based on sex, rejecting the employer's argument that the plaintiffs "chose to work in a correctional facility that houses ... the worst of the worst.").
Furthermore, as the movant for summary judgment, the Bank bears the initial burden to direct the court to record evidence that either negates an element of Ragan's claim or that demonstrates that she will be unable to meet her burden of proof at trial as to that element; it is not enough just to say in a brief effectively that "there is no evidence" to support an element of her claim. See United States v. Four Parcels of Real Property in Greene and Tuscaloosa Counties, 941 F.2d 1428, 1437-38 & n. 19 (11th Cir.1991) (en banc); Clark, 929 F.2d at 608-09. To that end, the Bank has not referred the court to any evidence demonstrating that Taylor subjected male employees to questioning, touching, or mistreatment like Ragan alleges. Even if the record at this point may be unclear regarding how Taylor treated male employees, that does not entitle the Bank to summary judgment on the theory that Taylor was equally harassing to employees of both genders.
Moreover, courts in this circuit have not hesitated to consider a male harasser's vulgar inquiries into a female employee's sex life to be sexually discriminatory conduct that may contribute to the creation of a hostile work environment. See, e.g., Griffin v. City of Opa-Locka, 261 F.3d 1295, 1309 (11th Cir.2001); Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 506-08 (11th Cir. 2000); Phillips, 711 F.2d at 1527-29; Moore v. Corporate Facilities Mgmt., LLC, 2012 WL 4329288, at *10 (N.D.Ala. Sept. 17, 2012); EEOC v. SDI Athens East, LLC, 690 F.Supp.2d 1370, 1380 (M.D.Ga.2010); Edwards v. Hyundai Motor Mfg. Ala., LLC, 603 F.Supp.2d 1336,
Further, Taylor's questions and statements can be viewed as degrading to women in particular. In a manner they suggest, and, indeed, at least once outright declared, that the proper role of women is to be sexually available and subservient to men, to the point of denying that women are ever truly physically coerced to engage in sexual acts against their will. See Jennings v. University of N.C., 482 F.3d 686, 695-96 (4th Cir.2007) (en banc) (explicit questions and comments by male coach to members of university women's soccer team about their sex lives "frequently carried the strong suggestion of promiscuity, provoked in several players acute feelings of humiliation and degradation that were directly linked to their gender."); EEOC v. R & R Ventures, 244 F.3d 334, 339-40 (4th Cir.2001) (recognizing that harasser's alleged conduct, which included having "described his sex life and discussed sexual positions" with female employees, asking a female employee "if she liked to be spanked" and if she had "gotten laid," contributed toward the creation of "an environment consumed by remarks that ridiculed and demeaned the status of women"); Gregory v. Daly, 243 F.3d 687, 690 (2d Cir.2001) (complaint stated a viable hostile environment claim where it alleged that the harasser made "demeaning comments about women" in which he explained to the plaintiff "in graphic detail[]" how a rape may occur, and told her "how easy it is to rape a woman."); Eastwood v. Department of Corr. of State of Okla., 846 F.2d 627, 629-30 (10th Cir.1988) (plaintiffs allegations that the employer's investigator demanded, in the name of investigating her report that she had been sexually assaulted by a co-worker, that the plaintiff reveal facts about her own sexual history and threatened to fire her unless she signed a statement promising to forget the incident if the coworker resigned, identified "actions that could constitute sexual harassment."); cf. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n. 3 (3d Cir.1990) ("The intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course.").
A jury could also reasonably find that at least most of Taylor's other comments about which Ragan complains were based on sex. Some of those were overtly sexual in nature, even assuming they did not amount to explicit requests or demands for sexual favors. Such would include Taylor's repeatedly calling Ragan "sexy," his two or three invitations to Ragan to sit in his lap, an occasion in which he told Ragan that she should bend him over her knee and "spank" him because he was a "bad boy," his "suggest[ing] that [Ragan] make him happy by having sex with" him, and an instance in which he stated that Ragan should leave her husband at home and accompany him on vacation to Tennessee.
Ragan also alleges multiple instances of gratuitous physical contact, often accompanied by the sort of compliments described above. On what appears to have been a few occasions, such contact entailed Taylor touching Ragan's hair or the side of her face in an intimate manner. More frequently Taylor would touch or gently pull on her clothing or put his hand in the small of her back to "guide" her closer to him, ostensibly for the purpose of looking at documents Ragan was holding. Ragan says that on some of those occasions she would "pull away" from Taylor, at which he would appear "miffed." Ragan also describes an incident in which Taylor pulled on the strings securing her blouse and they became untied. After instructing her to let him tie them back up, he took an inordinate amount of time to do so, simultaneously suggesting that other female employees might get jealous of Ragan if they thought she was having an affair with him. None of those instances of touching involved the "female-specific part[s] of her anatomy," as the Bank puts it. That does not, however, reasonably preclude that such "unwelcome remarks and touching might be done to gratify the harasser's own desires." Durham Life Ins. Co., 166 F.3d at 151 n. 6. Thus, the type of repeated, deliberate physical contact Ragan describes may be deemed at least to contribute to a hostile work environment, particularly in light of Taylor's other, sexual and gender-specific remarks and conduct. See Johnson, 234 F.3d at 509 (characterizing the harasser's sexually harassing conduct as "severe" in part because he gave the plaintiff "unwanted [shoulder] messages"); Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1189 (11th Cir.2001) (supervisor's solicitations to the plaintiff to reinstate their intimate relationship, coupled with evidence that "on several occasions he brushed up against her in an inappropriate way while at work," was sufficient to support that the
The Bank also argues that Ragan cannot establish that the harassment of which she complains was severe or pervasive enough to alter the terms and conditions of her employment. See Reeves, 594 F.3d at 808. "Either severity or pervasiveness is sufficient to establish a violation of Title VII." Id. The Fifth Circuit has explained:
Lauderdale v. Texas Dep't of Criminal Justice, Institutional Div., 512 F.3d 157, 163 (5th Cir.2007); see also Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1047 (7th Cir. 2002); Tademy v. Union Pacific Corp., 614 F.3d 1132, 1144 (10th Cir.2008). In evaluating whether allegedly discriminatory conduct is actionable, courts consider its "frequency ...; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 808-09 (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). As is done when considering whether harassment could be deemed to be based on sex, an inquiry into whether it was sufficiently severe or pervasive requires a court to view the evidence both cumulatively and in the totality of the circumstances, not in isolation. Id. at 808.
The plaintiff must prove that the environment was both subjectively and objectively hostile. Id. at 809. That is, the employee must subjectively perceive the harassment as sufficiently severe or pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable. Id. "So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious." Harris, 510 U.S. at 22, 114 S.Ct. 367 (citation omitted). "[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering `all the circumstances.' " Oncale, 523 U.S. at 81, 118 S.Ct. 998
The Bank only challenges the "objective" prong of the test, arguing that a reasonable person in Ragan's position would not consider Taylor's harassment to have been sufficiently severe or pervasive to be illegal. In support, the Bank asserts that "the conduct Ragan alleges is the quintessential intersexual flirtation that the Eleventh Circuit cautions against mistaking for a Title VII claim." (Dfts. Brief at 21) (internal quotation marks omitted). The undersigned again disagrees.
First and foremost, the Bank glaringly ignores almost all of Ragan's testimony as it relates to Taylor's response to her revelation that she allegedly had been forcibly raped several years earlier by a bank customer. The Bank dutifully acknowledges at least much of that testimony in its statement of facts. (See id. at 6-8, ¶ 16). The Bank's subsequent argument section of its brief, however, glosses over that evidence almost entirely, reducing it to a recognition that Ragan had "alleged that Taylor... on one occasion made her talk about an alleged rape." (Id. at 18). Taylor's conduct as recounted in Ragan's testimony, however, goes far beyond that sterilized reduction: Ragan claims that after she revealed to Taylor that the rape was the reason she had not called the customer about his past-due account,
It is at least arguable that Taylor's alleged conduct just as it relates to his response to Ragan's disclosure about being raped is sufficiently severe to infer the existence of an actionable hostile work environment. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C.Cir.2013) ("[S]everal courts have recognized ... a single verbal (or visual) incident can ... be sufficiently severe to justify a finding of a hostile work environment." (emphasis original)); Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909 (8th Cir.2003) (racially hostile graffiti that amounted to a death threat qualifies as severe); see also Howley, 217 F.3d at 154 (holding that a harasser's lengthy tirade that included numerous obscene, gender-specific epithets directed at the plaintiff, in a large group in which she was the only female and many of the men were her subordinates, could be viewed as humiliating and resulting in an intolerable alteration of the plaintiff's working conditions). The court need not actually decide whether that is so, however, because Ragan has alleged numerous additional instances of sexually harassing behavior. Those include explicit inquiries and statements by Taylor related to the status of Ragan's marriage, sexual positions,
Admittedly, many of the compliments and remarks that Ragan identifies could be viewed in isolation as at least relatively innocent or inoffensive. Likewise, the instances of touching she recounts are not the sort of sexually explicit grabbing, fondling, or groping sometimes seen in these cases. The Eleventh Circuit has typically viewed remarks and physical contact similar to those Ragan alleges here, even if somewhat repetitive, as entitled to little weight in calculating whether harassment altered the terms and conditions of employment. See, e.g., Mendoza, 195 F.3d at 1248-50; Gupta, 212 F.3d at 583-86; Nurse "BE" v. Columbia Palms W. Hosp. Ltd. Partnership, 490 F.3d 1302, 1309-10 (11th Cir.2007); Corbitt v. Home Depot USA, Inc., 589 F.3d 1136, 1153-56 (11th Cir.2009), opinion vacated, 598 F.3d 1259 (11th Cir.) (en banc), remanding with instructions to dismiss, 611 F.3d 1379 (11th Cir.2010); see also Oncale, 523 U.S. at 81, 118 S.Ct. 998 (noting that "intersexual flirtation" is not sexual harassment). Nonetheless, as the Eleventh Circuit has observed, "[w]hat can be a `compliment,' ... between two persons who have a social relationship can be abusive in the workplace-but that is, in many cases, the whole point of the sexual harassment claim." Sparks, 830 F.2d at 1561 n. 13; see also Mendoza, 195 F.3d at 1258 ("Depending upon the circumstances, an employer's comment to an employee that he or she `looks good today' could be construed as a friendly compliment, a harmless flirtation, or [a] sexually offensive verbal assault....") (Tjoflat, J., concurring in part and dissenting in part). Here, a jury would be authorized to find that Taylor's even otherwise relatively benign compliments, comments, and touching had a material impact on Ragan's work environment when viewed cumulatively and in the the context of his other more sexually explicit remarks and inquiries. In particular, it would not be unreasonable for a woman in Ragan's position to feel humiliated or threatened by such attention and repeated, gratuitous physical contact from the employer's highest-ranking supervisor who has not only expressed some sexual interest in her but also made clear his belief that all women, including her specifically, never really mean "no" when they say "no" and are thus fair game to be sexually assaulted. See Parker, 2006 WL 1594427, at *3; Gregory, 243 F.3d at 693.
Based on the foregoing, a jury could reasonably find Taylor's harassment was sufficiently severe or pervasive, objectively speaking, to create a sexually hostile working environment in violation of Title VII. Suffice it to say that the Bank's assertion that Taylor's alleged harassment does not amount to "anything more tha[n] flirtatious behavior" that is "far less severe" than the conduct deemed insufficient to create a hostile environment in Mendoza and Lockett v. Choice Hotels Int'l, Inc., 315 Fed.Appx. 862 (11th Cir.2009) (Dfts. Brief at 22), fails to view the evidence here in
Count Three of the Complaint is captioned as a cause of action for "Gender Discrimination." Ragan alleges therein in relevant part that she
(Compl. ¶ 35).
The Bank has expressly moved for summary judgment on such claims, arguing that there is insufficient evidence in the record to support them. (Dfts. Brief at 13, 19-20). While Plaintiffs have opposed the Bank's motion as it relates to Ragan's Title VII claims alleging she was subjected to a hostile work environment and later to unlawful retaliation, Plaintiffs have offered no response to the Bank's argument that it is entitled to summary judgment with regard to the other "gender discrimination" claims in Count Three. As a result, such claims have been abandoned. See Jones v. Bank of Amer., N.A., 564 Fed.Appx. 432, 433-34, 2014 WL 1642622, at *2 (11th Cir. April 25, 2014); Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1284-85 (11th Cir.2003); Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994). The Bank's motion for summary judgment is due to be granted as it relates to Plaintiffs Title VII sex discrimination claims not based on allegations that she endured a hostile environment.
In Count Four, Ragan alleges that the Bank retaliated against her in violation of Title VII. In order to make out a prima facie case of retaliation, the plaintiff has the burden at trial to establish the following: (1) that she engaged in an activity protected under Title VII; (2) she suffered a materially adverse action; and (3) there was a causal connection between the protected activity and the adverse action. Kidd v. Mando American Corp., 731 F.3d 1196, 1211 (11th Cir.2013).
The Bank contends that it is entitled to summary judgment on Ragan's retaliation claim alleging that she was terminated shortly after complaining to Taylor about his sexually harassing conduct and threatened to tell his wife about it. The Bank attacks only the first element of the prima facie case, i.e., whether Ragan's complaint constituted protected activity. In so doing, the Bank assumes that the substance of Ragan's complaint was as set forth in her deposition, to the effect that, after Taylor made a sexually suggestive remark, she responded by telling him that if he "didn't quit hitting on [her] [she] was going to have to say something to [his wife]." (Dfts. Brief at 23-24 (quoting Ragan Dep. at 132-33)).
Ragan's complaint at issue occurred prior to her filing of an EEOC charge and did not otherwise involve an EEOC investigation. Accordingly, the operative provision of 42 U.S.C. § 2000e-3(a) relating to her instant retaliation claim would be the "opposition clause" rather than the "participation clause." See EEOC v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir.2000). Title VII's opposition clause makes it "unlawful... for an employer to discriminate
In arguing that Ragan's complaint and threat to Taylor was not protected activity, the Bank makes two principal arguments. The Bank first argues that her statement did not amount to opposition to an unlawful employment practice because "Ragan did not mention harassment or discrimination in her comment to Taylor[,] and she does not even tell him to stop." (Id. at 24). Second, the Bank claims that because "workplace flirting is not actionable sexual harassment, ... even if Ragan subjectively believed that her comment was in opposition to unlawful sexual harassment, her belie[f] was not objectively reasonable." (Id.)
There are several flaws in the Bank's arguments. First, the Bank's assertion that Ragan's complaint to Taylor, as quoted from her deposition, does not communicate insistence that he "stop" behavior she found objectionable is untenable. Ragan's threat to tell Taylor's wife about his conduct unless he "quit" doing it unmistakably conveys a demand that it cease. See http://www.merriam-webster.com/dictionary/quit (defining the verb "quit" as including "to stop doing (an action or activity)"
Second, the Bank is also wrong to the extent it suggests that Ragan's complaint could not be construed to communicate a belief that Taylor's perceived treatment was motivated by her sex. Again, taking just Ragan's deposition testimony quoted by the Bank, Ragan told Taylor to quit "hitting on" her. That expression unambiguously evidences that Ragan was objecting to conduct that she perceived as a sexual advance. See generally, e.g., Van Der Meulen v. Brinker Intern., 153 Fed. Appx. 649, 653 (11th Cir.2005) ("She stated that Marks `was always hitting on the younger [female employees],' and making `sexual comments' about their bodies and the way that they were dressed."). As such, a jury could infer that Taylor understood that Ragan's objection to being "hit on" was a complaint about perceived mistreatment based on her sex. See, e.g., Whitten v. Fred's Inc., 601 F.3d 231, 237 n. 1 (4th Cir.2010), abrogated on other grounds, Vance v. Ball State Univ., ___ U.S. ___, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir.1997), abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Dinkins v. Charoen Pokphand USA, Inc., 133 F.Supp.2d 1237, 1253 (M.D.Ala.2001); Langley v. Dolgencorp, LLC, 972 F.Supp.2d 804, 813 (D.S.C.2013); see also Oncale, 523 U.S. at 80, 118 S.Ct. 998 (explaining that it is easy to draw an inference of sex discrimination where conduct "involves explicit or implicit proposals of sexual activity").
Third, the Bank's is also incorrect to posit that Ragan's complaint could not be protected because she allegedly could not have had an objectively reasonable belief that Taylor's conduct violated Title VII. Insofar as the Bank's argument amounts to a claim that Ragan could not have reasonably believed that Taylor's alleged harassment, viewed in its entirety, was actionable, it is easily rejected. For reasons already explained, the evidence supports the even higher showing that Taylor's conduct actually created a sexually hostile work environment. That is enough to establish the requisite objectively reasonable belief, see EEOC v. White & Son Enterprises, 881 F.2d 1006, 1012 n. 5 (11th Cir.1989); Royal v. CCC & R Tres Arboles, LLC, 736 F.3d 396, 401 n. 2 (5th Cir.2013), at least where, as here, the plaintiff is aware of all of the underlying harassment. See Clover v. Total System Services, Inc., 176 F.3d 1346, 1352 (11th Cir.1999).
However, one might also construe this argument by the Bank as claiming more pointedly that Ragan's complaint to Taylor was not protected because it referenced an objection only to his "hitting on" her. Such conduct, the Bank seems to suggest, would itself amount merely to "workplace flirting" (Dfts. Brief at 24) that, standing alone, does not constitute an "unlawful employment practice" under Title VII and that Ragan could not have reasonably believed
The Bank, however, has not cited any authority suggesting that, in order to constitute protected opposition, a plaintiffs sexual harassment complaint to her employer must spell out the details of underlying incidents in a manner demonstrating the existence of an actionable hostile environment. To the contrary, the Ninth Circuit has recognized:
EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 954 (9th Cir.2009); accord Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178-80 (2d Cir.1996) (complaint about a coworker's sexually vulgar comment could be protected activity where plaintiff could have had a reasonable belief that the comment contributed to the creation of a hostile work environment in light of earlier sexually discriminatory remarks and conduct, even if one could not reasonably think that the final comment alone violated Title VII). That principle is arguably even more apt where, as here, a female plaintiff complains to a supervisor who is himself the alleged harasser and she demands that he cease engaging in sexually harassing conduct. In that setting, the supervisor would necessarily be aware of all preceding instances of his own sexually harassing conduct, so there is less concern that he might fail to apprehend its broader context. Thus, such a complaint made to the harassing supervisor, accompanied by a demand that he cease engaging in sexually harassing conduct generally, may be protected where the employee could reasonably believe that the supervisor's harassment, viewed cumulatively, was unlawful under Title VII. See Ross v. Baldwin County Bd. of Educ., 2008 WL 820573, at *5-6 (S.D.Ala. Mar. 24, 2008); Quarles v. McDuffie County, 949 F.Supp. 846, 853 (S.D.Ga.1996); Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir.2000); EEOC v. New Breed Logistics, 962 F.Supp.2d 1001, 1017 & n. 73 (W.D.Tenn.2013); see also Melgarejo, 2008 WL 958203, at *3; but cf. LaMaire v. Louisiana Dep't of Transp. & Dev., 480 F.3d 383, 389 (5th Cir.2007) ("rejecting sexual advances" is not itself protected activity); Del Castillo v. Pathmark Stores, Inc., 941 F.Supp. 437, 438-39 (S.D.N.Y.1996) ("simply declining a harasser's sexual advances" is not protected activity under Title VII). That is even more true here insofar as the Bank's own policies and procedures effectively designated Taylor, ironically enough, as the only employer representative to whom Ragan might voice sexual harassment complaints.
Finally, even if one might still be inclined to construe Ragan's complaint insisting that Taylor "quit hitting on" her as too vague to put the employer on notice
In Count Five, Plaintiffs assert claims against the Bank based upon its alleged negligence or wantonness associated with its hiring, training, supervision, and retention of Taylor. These claims, like all of Plaintiffs' non-Title VII claims, are governed by Alabama substantive law. See Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Jones v. United Space Alliance, LLC, 494 F.3d 1306, 1309 (11th Cir.2007). The Alabama Supreme Court has described the crux of this cause of action as follows:
Armstrong Business Services, Inc. v. Am-South Bank, 817 So.2d 665, 682 (Ala.2001); Big B, Inc. v. Cottingham, 634 So.2d 999, 1003 (Ala.1993) (quoting Lane v. Central Bank of Ala., N.A., 425 So.2d 1098, 1100 (Ala.1983) (quoting Thompson v. Havard, 285 Ala. 718, 725, 235 So.2d 853 (1970))).
The Bank has moved for summary judgment on these claims, point to evidence indicating that it had received no prior complaints about sexual harassment by Taylor nor any other notice that he was
Plaintiffs' evidence regarding Taylor's treatment of Doss falls far short of creating an issue of fact with regard to whether the Bank had prior notice of Taylor's alleged propensity to sexually harass female employees so as to be deemed incompetent. Even considering all of the conduct that Doss identifies, it is highly doubtful that, as described, it would support any tort cause of action under Alabama law, and it does not come close to being sufficiently severe or pervasive to constitute a sexually hostile work environment actionable under Title VII. Further, it undisputed that Doss did not complain to anyone about Taylor's behavior, and the only conduct she claims was witnessed by anyone else amounted to a mix of insults that Taylor directed at his own wife. Even then, such remarks would be tied intimately to the dynamics of their personal relationship, as distinct from simply his wife's sex. See Pipkins, 267 F.3d at 1200-01; Succar v. Dade County Sch. Bd., 229 F.3d 1343, 1345 (11th Cir.2000). Finally, the alleged conduct Doss describes would have occurred about 17 years or more before Ragan was even hired, and there is no evidence of any further complaints in the interim. Doss's testimony fails to support that the Bank knew or should have known at the time Ragan was employed that Taylor was incompetent based on an alleged predisposition to engage in tortious, sexually harassing conduct towards other women. See Speigner v. Shoal Creek Drummond Mine, 402 Fed.Appx. 428, 433 (11th Cir.2010). The Bank is entitled to summary judgment on the claims in Count Five.
In Count Six, Plaintiffs assert that Defendants are liable for "invasion of privacy" under Alabama law. The Alabama Supreme Court has defined the tort of invasion of privacy as the "`intentional wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.'" Rosen v. Montgomery Surgical Ctr., 825 So.2d 735, 737 (Ala.2001) (quoting Carter v. Innisfree Hotel, Inc., 661 So.2d 1174, 1178 (Ala.1995)).
S.B. v. Saint James School, 959 So.2d 72, 90 (Ala.2006) (internal quotation marks omitted); see also Cash v. Smith, 231 F.3d 1301, 1308 (11th Cir.2000). "Each of these categories of invasion of privacy has distinct elements, and each category establishes a separate privacy interest that may be invaded." Saint James School, 959 So.2d at 90 (citing Regions Bank v. Plott, 897 So.2d 239 (Ala.2004)). In bringing these claims, Plaintiffs rely on the first three variants of the tort, which are based on §§ 652B, 652D, and 652E of the Restatement (Second) of Torts (hereinafter the "Restatement") (1977). (See Compl. ¶¶ 53, 55; Pls. Opp. Brief at 35-39). The parties' summary judgment arguments relative to each theory are considered in turn.
Under the wrongful-intrusion theory,
Saint James School, 959 So.2d at 90 (quoting Restatement § 652B). The Alabama Supreme Court has further explained:
Id. at 90-91 (quoting Johnston v. Fuller, 706 So.2d 700, 702 (Ala.1997) (internal quotation marks and citations omitted)). Thus, to succeed on a claim of this nature relating to sexual harassment,
Ex parte Atmore Community Hosp., 719 So.2d 1190, 1194 (Ala.1998).
Ragan has testified that Taylor directed sexually explicit remarks and questions to her on multiple occasions seeking information about her sex life with her husband, including "how good the sex was" and what positions they preferred. Ragan further claims that, later, when she explained to Taylor that she did not want to call a bank customer because he had raped her at knife point several years earlier, Taylor responded by insistently demanding that Ragan tell him all of the intimate details of the rape. Even after Ragan indicated that
Under an invasion of privacy claim based on § 652D of the Restatement, liability may be imposed against one "who gives publicity to a matter concerning the private life of another ... if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." Johnston, 706 So.2d at 703 (quoting Restatement § 652D). Likewise, under the "false light" invasion-of-privacy tort set forth in § 652E,
Plott, 897 So.2d at 244 (quoting Restatement § 652E) (internal quotation marks and other citations omitted). Thus, under both §§ 652D and 652E, a plaintiff is required to establish that the defendant gave "publicity" to a particular type fact. See Saint James School, 959 So.2d at 72, 93. The key difference between the respective causes of action under §§ 652D and 652E is the type of information to which the defendant must have given publicity. Under § 652D, the fact publicized must be a matter "concerning the private, as distinguished from the public, life of the individual." Restatement § 652D cmt. b. By contrast, a false-light claim under § 652E does not require that the information made public be private; it requires that the information be false. Plott, 897 So.2d at 244.
With regard to the former tort, giving publicity to private information, Defendants concede that Ragan "does allege that Taylor obtained information from her that would be private concerning ... an alleged rape...." (Dfts. Brief at 29). Defendants point out, however, that Taylor testified that he did not tell anyone else about Ragan's allegation that she had been raped (see Taylor Dep. at 172-73), and Defendants maintain that there is no contrary evidence "that Defendants published her personal affairs that were not meant to
However, Ragan testified that, after she revealed in a private conversation with Taylor that she had been raped, he taunted her about it on multiple occasions thereafter, including by asking rhetorically whether the customer was the person she said had raped her. More to the point, Ragan further testified that Taylor engaged in such mocking behavior in public, in front of other employees and customers of the Bank. (See Ragan Dep. 169-72, 212-14; Ragan Aff. at 5). Because the Bank's motion does not contest that such publication
With respect to the third theory of liability for invasion of privacy, Plaintiffs have pled that "Taylor placed [Ragan] in a false and defamatory light." (Compl. ¶ 55). The Complaint indicates that such cause of action is also based on Ragan's allegation that Taylor taunted her in front of others about claiming to have been raped by the bank customer, including by making remarks that she had "enjoyed it" and otherwise suggesting that her claim was false or illegitimate. (Id. ¶¶ 20, 51; see also Ragan Dep. 169-72, 212-14). Again, however, Defendants' motion seeks summary judgment on Ragan's invasion-of-privacy claims related to the disclosure of her personal affairs based solely on the premise that she has no proof that Taylor "published"
In Count Seven, Ragan alleges that Defendants are liable under the interrelated tort theories of assault and battery. Under Alabama law,
Peterson v. BMI Refractories, 132 F.3d 1405, 1412-13 (11th Cir.1998) (emphasis omitted); see also O'Rear v. B.H., 69 So.3d 106, 117 (Ala.2011); Walker v. City of Huntsville, 62 So.3d 474, 494 (Ala.2010). Battery also encompasses the rude or offensive touching of another person's clothing. Hyde v. Cain, 159 Ala. 364, 47 So. 1014, 1014 (1908); Mills v. Wex-Tex Industries, Inc., 991 F.Supp. 1370, 1382 (M.D.Ala.1997). "The wrong [in committing a battery] consists, not in the touching so much as in the manner or spirit in which it is done, and the question of bodily pain is important only as affecting damages." Harper v. Winston County, 892 So.2d 346, 353 (Ala.2004) (quoting Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala. 1986), quoting Singer Sewing Machine Co. v. Methvin, 184 Ala. 554, 63 So. 997, 1000 (1913)).
Ragan alleges that Taylor touched her face and played with her hair. She says that he frequently placed his hand on the small of her back to "guide" her closer to him, ostensibly to view documents she was holding. Ragan also claims that Taylor at times tugged on her skirt and blouse, including one time where he untied the strings securing the latter, put his arm on her to stop her from walking away from him, and instructed her to allow him to retie them while suggesting that it might appear to other employees that they were having a sexual affair. While these are not blatantly offensive physical contacts, there is sufficient evidence from which to infer that such touching was intentional, gratuitous, conducted with sexual overtones, and was unwelcome. As such, there is sufficient evidence from which a jury could find that Taylor committed a battery, the apprehension of which by Ragan would give rise to an assault. See Atmore Community Hosp., 719 So.2d at 1194; Bryars v. Kirby's Spectrum Collision, Inc., 2009 WL 1286006, at *16 (S.D.Ala. May 7, 2009); Edwards v. Hyundai Motor Mfg. Ala., LLC, 603 F.Supp.2d 1336, 1356 (M.D.Ala.2009). Defendants motion is due to be denied as to these claims as well.
In Count Eight, Ragan asserts that Defendants are liable for intentional infliction of emotional distress, otherwise known as the tort of "outrage." See Ex parte Bole, 103 So.3d 40, 52 (Ala.2012). The Alabama Supreme Court has explained as follows with regard to this cause of action:
Bole, 103 So.3d at 52 (citations and internal quotation marks omitted).
Defendants argue that they are entitled to summary judgment on Ragan's outrage claim because, they assert, the evidence is insufficient to establish that any of Defendants' alleged conduct was so outrageous as to cause a person of ordinary sensibilities to suffer severe emotional distress or that such conduct goes beyond all possible bounds of decency. (Dfts. Brief at 27-30). Again, however, in making such arguments, Defendants conveniently whitewash the details of Taylor's conduct as it relates to his response to Ragan's disclosure that she had been raped at knife point several years earlier while in high school. That conduct includes Taylor allegedly using his power as the Bank's highest-ranking employee to coerce Ragan into answering questions seeking all of the intimate details of how she was raped, including what sexual position she was in, what clothing she was wearing, where her attacker held the knife, and what she was thinking during the episode. It further includes allegations that Taylor denied Ragan's request to have the servicing of her rapist's loan account reassigned to another Bank employee; told Ragan that her being forced to have sexual intercourse was not actually rape because women "enjoy being forced" and that she knew she "wanted it"; and taunted Ragan on multiple occasions, sometimes in front of others, about claiming to have been raped. Ragan also alleges that Taylor engaged in numerous other instances of sexually harassing behavior previously described, including sexually explicit questions and statements related to Ragan's marriage and her sex life. While not doing so lightly, the undersigned views Ragan's testimony, particularly as its relates to Taylor's alleged response to her claim of rape, as evidencing the kind of sufficiently "egregious sexual harassment" necessary to create a jury question precluding the entry of summary judgment on her outrage claims against Defendants.
In Count Nine, Ragan asserts a claim under Alabama state law for breach of an implied contract, based on allegations that the Defendants failed to "keep confidential, personal information given to them." (Compl. ¶¶ 74, 76). After Defendants moved for summary judgment on this claim (Dfts. Brief at 32-33), Plaintiffs responded by consenting to its voluntary dismissal.
In the tenth and final count of the Complaint, Mitch asserts a claim for loss of consortium. Recognizing that is that liability on such a claim is derivative of the claims of the injured spouse, Defendants assert that they are entitled summary judgment on this claim based solely on an assumption that they are entitled to prevail as a matter of law on all claims asserted against them by Ragan. See Lyons v. Vaughan Regional Med. Ctr., LLC, 23 So.3d 23, 29 (Ala.2009). However, because Defendants' assumption about the potential validity of Ragan's claims is erroneous, Defendants are not entitled to summary judgment on Mitch's claim for loss of consortium, either.
Based on the foregoing, it is
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b)(2), FED. R. CIV. P., any party may file specific written objections to this report and recommendation within fourteen (14) days from the date it is filed in the office of the Clerk. Failure to file written objections to the proposed findings and recommendations contained in this report and recommendation within fourteen (14) days from the date it is filed shall bar an aggrieved party from attacking the factual findings on appeal. Written objections shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.
