MEMORANDUM OPINION

C. LYNWOOD SMITH, JR., Senior District Judge.

The complaint filed by Clint Parker against his former employer, Consolidated Pipe & Supply Company, contains three counts. The first is based upon Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and alleges that plaintiff was subjected to sexual harassment and a sexually-hostile work environment by his supervisor. The second also is based upon Title VII, and alleges that plaintiff was subjected to retaliation as a result of complaining about the sexual harassment. The final count asserts a state-law claim for intentional infliction of emotional distress. Following discovery, defendant moved for summary judgment. Upon consideration of the pleadings, briefs, evidentiary submissions, and oral arguments of counsel, the court enters the following opinion.

I. STANDARDS OF REVIEW

Federal Rule of Civil Procedure 56 provides that a 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. P. 56(a). The Supreme Court added a gloss to the language of that Rule, saying that summary judgment is proper "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). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").

II. FACTS

Plaintiff, Clint Parker, is a 39 or 40 year-old white male who was employed as a "regular" (i.e., non-temporary) delivery driver for Consolidated Pipe & Supply Company, Inc., for nearly two-and-a-half years, from March 7, 2016 through August 14, 2018.1 He worked in the company's Decatur, Alabama, Branch. The facility in which Branch operations were conducted was divided into separate Warehouse and Office areas.2 Industrial pipe, valves, fittings, and related materials were stored in the Warehouse prior to sale and delivery to customers.3 Four employees, including the plaintiff,4 worked in the Warehouse under the supervision of Warehouse Manager Ronnie Breeding. Clerical and sales employees worked in the Office under the supervision of Office/Payroll Manager Glenda Vaughn. Mr. Breeding did not work in the Office, and he neither supervised nor exercised any managerial authority over Ms. Vaughn or any other employees who worked in the Office.5 Ms. Vaughn was the only female in the Decatur branch, and she spent virtually all of her time in the Office. She occasionally walked through the Warehouse for such purposes as depositing trash in an outside container, or talking to a warehouse employee "about a payroll, attendance or similar administrative issue," but she did not have any regular work function that required her to be in the Warehouse.6 All employees, regardless of whether they worked in the Office or Warehouse, were under the overall supervision of Branch Manager Joey Lee.

Plaintiff alleges that he was subjected to sexual harassment by his supervisor, Ronnie Breeding, during an imprecise period of approximately four months. The earliest reported incident occurred on or about October 25, 2016,7 and the last during late January or early February of 2017.8 The relevant paragraphs of plaintiff's complaint allege that:

Doc. no. 1 (Complaint), ¶¶ 11-17 (footnotes added).11

In addition to the allegations contained in his complaint, plaintiff testified during deposition that, on three or four occasions, Breeding had dangled plaintiff's pay stub from the open crotch of his pants and said "If you want your check, come get it."12 Another incident not alleged in either plaintiff's initial EEOC Charge or his complaint occurred when plaintiff was on a ladder, reaching for rolls of Teflon tape used by plumbers to seal pipe threads. Breeding came up from behind plaintiff and grabbed him on the back of the leg, "right below [his] butt."13

Plaintiff seriously injured his ankle on March 10, 2017,14 one month prior to submitting his Charge of Discrimination to the EEOC. He was denied workers' compensation coverage for the injury,15 and filed suit in state court on April 11, 2017, five days after executing his EEOC Charge.16 His state-court complaint alleged that his injury was "the proximate result of an accident occurring on the job and during the course of his employment with Consolidated Pipe": i.e., plaintiff "slipped while attempting to tighten a strap while making a delivery . . . ."17 Defendant denied that assertion, based upon several inconsistent statements made by plaintiff to co-employees about the time and place of his injury.18 Plaintiff was off work for nearly seven months, from March 11 until October 3, 2017.19 He ceased reporting to work on June 28, 2018, and was terminated on August 14, 2018, following forty-seven days of unexcused absence.20

The EEOC dismissed plaintiff's Charge of Discrimination on September 17, 2018.21 This suit followed.

III. DISCUSSION

A. Count One — Sexual harassment

In order to establish a Title VII hostile-work-environment claim based upon sexual-harassment by a supervisor, an employee must show: (1) that he belongs to a protected group; (2) he was subjected to unwelcome sexual harassment; (3) the harassment was based upon the plaintiff's gender; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of plaintiff's employment, and created a discriminatorily-abusive work environment; and (5) there is a basis for holding the employer responsible under a theory of either vicarious or direct liability. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc) (citing Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982)). See also, e.g., Watson v. Blue Circle, Inc., 324 F.3d 1252, 1257 (11th Cir. 2003); Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 508 (11th Cir. 2000); Gupta v. Florida Board of Regents, 212 F.3d 571, 582 (11th Cir. 2000); Cross v. State of Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995); Bell v. Crackin' Good Bakers, Inc., 777 F.2d 1497, 1502-03 (11th Cir. 1985). The evidence related to those elements is discussed in the following sub-sections.

1. Membership in a protected group

Plaintiff and Ronnie Breeding are both males. Even so, "Title VII's prohibition of discrimination `because of . . . sex' protects men as well as women." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998) (citing Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983)).22 Moreover, the Supreme Court has specifically held that "same-sex sexual harassment is actionable under Title VII." Oncale, 523 U.S. at 82. Indeed, "nothing in Title VII necessarily bars a claim of discrimination `because of . . . sex' merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex." Id. at 79. Consequently, Title VII sexual-harassment claims will lie for male-on-male or female-on-female harassment. See, e.g., Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1242 n.10 (11th Cir. 1998) (holding that "same-sex sexual harassment can give rise to the same inference of impermissible discriminatory animus as does different-sex sexual harassment, depending on the sexual preferences of the harasser").23

2. Unwelcomeness

The EEOC Charge and complaint filed by plaintiff establish that he did not welcome the acts described in each.

3. Harassment based upon the plaintiff's gender

Same-sex harassment is actionable, provided it is demonstrated that the harassment was based upon the gender of the harassed employee.

Stancombe v. New Process Steel LP, 652 F. App'x 729, 733 (11th Cir. 2016) (per curiam) (citing Oncale, 523 U.S. at 80-81).24 During deposition, plaintiff twice voiced his opinion that Breeding was either homosexual or bisexual.25 Such proclivities were vehemently denied by Breeding,26 and also rejected by Branch Manager Lee.27 Lee also denied a sexual motivation for Breeding's behavior, and characterized it as "the sort of crude or vulgar locker room, grab ass, horseplay that sometimes occurs in blue collar, industrial and . . . all male work environments."28 Plaintiff's co-employee, Ricky Barber — who also had been a victim of Breeding's offensive conduct, and the first to lodge a complaint about it29 — agreed that Breeding's behavior was not "sexual," but "just horseplay . . . It was like high school locker room horseplay with one male `popping' another male on the butt with a wet towel."30

Regardless, the issue remains one of determining whether plaintiff has presented sufficient evidence from which a reasonable jury could conclude that Breeding's harassment of plaintiff was based upon plaintiff's gender. See, e.g., Ashmore v. J.P. Thayer Co., Inc., 303 F.Supp.2d 1359, 1369 (M.D. Ga. 2004).31 Laying to one side plaintiff's subjective opinion about Breeding's sexual proclivities, the strongest support for this element of a sexual harassment claim is the legal inference stated by the Eleventh Circuit's opinions in Llampallas, supra, and Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir.1997): that is,

Llampallas, 163 F.3d at 1246 (quoting Fredette, 112 F.3d at 1505) (alteration in original).

On the other hand, the evidence is clear that Breeding did not subject Office and Payroll Manager Glenda Vaughn, the only female working in defendant's Decatur branch,32 to harassing conduct. Given the separate areas in which Breeding and Ms. Vaughn worked, however, and the fact that he neither had any regular contact with nor supervisory authority over her,33 that is not strong support for an argument that Breeding "treated one sex in a mixed-sex workplace differently than the other sex." Stancombe, 652 F. App'x at 733. Indeed, it is a slim reed upon which to lean so much evidentiary weight.

Despite the weakness of evidentiary support for this element of a prima facie case, the court will assume for the sake of discussion that plaintiff has presented sufficient evidence from which a reasonable jury could conclude that Breeding's harassment of plaintiff was based upon plaintiff's gender.

4. Was the harassment sufficiently severe and pervasive as to create an abusive work environment

The requirement for an employee to establish that the harassment was sufficiently severe or pervasive as to alter the terms and conditions of his employment includes both a subjective and an objective component. See, e.g., Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). Plaintiff subjectively believed that the actions of his supervisor were severe. But that is neither the sole, nor the determinative, consideration. Instead, the plaintiff "must prove that the environment was both subjectively and objectively hostile." Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th Cir.2010) (en banc) (emphasis supplied); see also, e.g., Mendoza, 195 F.3d at 1246 ("The employee must `subjectively perceive' the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable.") (quoting Harris, 510 U.S. at 21-22) (emphasis supplied).

The Supreme Court emphasized that "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'" Oncale, 523 U.S. at 81 (quoting Harris, 510 U.S. at 23). The Eleventh Circuit elaborated that principle in Mendoza, saying that:

Mendoza, 195 F.3d at 1246 (alterations supplied).

The conduct attributed to plaintiff's supervisor falls short of the level that a reasonable person would perceive as sufficiently severe or pervasive to alter the terms or conditions of employment. While Breeding's actions of jabbing a broomstick and other objects into plaintiff's buttocks were clearly inappropriate, vulgar, and — in those incidents in which Breeding taunted plaintiff by placing his check stub in the open crotch of his pants and saying "come get it" — clearly repulsive, the court "cannot look solely to the `physical acts performed.'" Stancombe, 652 F. App'x at 735 (quoting Oncale, 523 U.S. at 82). The Eleventh Circuit in Stancombe found somewhat similar conduct34 to not be sufficiently severe or pervasive because it only involved two incidents over a one-month period, and "scant evidence" supported the conclusion that the harassment affected plaintiff's job performance. Id. Similarly, the conduct at issue in this case consisted of a handful of incidents over a four-month period that ceased after Breeding received a second warning from the Branch Manager in February of 2017. The objectionable conduct was not resumed after that warning, or after the date on which plaintiff returned to work following his September 2017 foot surgery. There was no harassment from then until his termination in August 2018.35

Even though plaintiff claimed that one of the incidents involving the end of a hammer was painful,36 he did not present evidence that Breeding's conduct was "physically threatening or humiliating," or that the cumulative effect of all of Breeding's conduct impaired, much less "unreasonably interfered with," his job performance.

In conclusion, Breeding's conduct falls short of supporting an actionable Title VII hostile-work-environment, sexual-harassment claim.

B. Count Two — Retaliation

Plaintiff failed to respond to defendant's argument that summary judgment should be entered in its favor on his retaliation claim. Issues and contentions not raised in a party's brief are deemed abandoned. See, e.g., Continental Technical Services, Inc. v. Rockwell International Corp., 927 F.2d 1198, 1199 (11th Cir. 1991) ("An argument not made is waived. . . .").

Greenlaw v. United States, 554 U.S. 237, 244 (2008). See also, e.g., Chapman v. AI Transport, 229 F.3d 1012, 1027 (11th Cir. 2000) (en banc) ("Parties opposing summary judgment are appropriately charged with the responsibility of marshaling and presenting their evidence before summary judgment is granted, not afterwards."); Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (holding that a district court can "properly treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment") (citing Lazzara v. Howard A. Esser, Inc., 802 F.2d 260, 269 (7th Cir. 1986) (holding that a ground not pressed in opposition to a motion for summary judgment is to be treated by the district court as abandoned)).

Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (some citations omitted).37

For all of the foregoing reasons, count two of the plaintiff's complaint will be dismissed without further discussion.

C. Count Three — Intentional infliction of emotional distress

Under Alabama law, an action for the intentional infliction of emotional distress and the so-called "tort of outrage" are conceptually deemed to be synonymous. See, e.g., Ex Parte Lumbermen's Underwriting Alliance, 662 So.2d 1133, 1134 (Ala. 1995) (recognizing that intentional infliction of emotional distress is "otherwise known as the tort of outrage"); Sanders v. Shoe Show, Inc., 778 So.2d 820, 823 (Ala. Civ. App. 2000) (same); see also Sphere Drake Ins., P.L.C. v. Shoney's, Inc., 923 F.Supp. 1481, 1491 (M.D. Ala. 1996) (stating that, under Alabama law, the tort of outrage and the intentional infliction of emotional distress are "the same cause of action").

The Alabama Supreme court first recognized the cause of action in American Road Service Co. v. Inmon, 394 So.2d 361 (1980), saying that:

Id. at 365 (internal citations omitted). To establish such a claim, regardless of whether it is characterized by a plaintiff as "outrageous," or as an intentional infliction of emotional distress, the plaintiff must demonstrate: "(1) that the defendants either intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from their conduct; (2) that the defendants' conduct was extreme and outrageous; and (3) that the defendants' conduct caused emotional distress so severe that no reasonable person could be expected to endure it." Callens v. Jefferson County Nursing Home, 769 So.2d 273, 281 (Ala. 2000) (citing Jackson v. Alabama Power Co., 630 So.2d 439 (Ala. 1993), and American Road Service v. Inmon, supra).

In any event, the Alabama Supreme Court recognizes the tort only in "egregious circumstances" and, thus, has limited its application to the following areas: (1) wrongful conduct within the context of family burials; (2) an insurance agent's coercing an insured into settling an insurance claim; and (3) egregious sexual harassment. Callens, 769 So. 2d at 281 (citing Thomas v. BSE Indus. Contractors, Inc., 624 So.2d 1041 (Ala. 1993)).

In view of the fact that this court has concluded that the conduct of plaintiff's supervisor falls short of supporting an actionable Title VII hostile-work-environment, sexual-harassment claim, it would seem that the conduct of which plaintiff complains cannot fairly be characterized as "emotional distress so severe that no reasonable person could be expected to endure it." Callens, 769 So. 2d at 281. Even so, in cases like this one, where the court's jurisdiction is based solely upon the federal questions raised by the claims alleged in counts one and two, the court retains discretion to entertain a state-law claim that is supplemental to the federal claims. See 28 U.S.C. § 1367(a).38 The district court may decline to exercise supplemental jurisdiction when:

28 U.S.C. § 1367(c). The Supreme Court added a gloss to this statutory language in Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988), when observing that

Id. at 349-50 (emphasis supplied) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726-27 (1966)). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon, 484 U.S. at 350 n.7; see also L.A. Draper & Son V. Wheelabrator-Frye, Inc., 735 F.2d 414, 428 (11th Cir. 1984) (stating that "if the federal claims are dismissed prior to trial, Gibbs strongly encourages or even requires dismissal of state claims").

Here, plaintiff's federal claims will be dismissed prior to trial. Additionally, plaintiff's state law claim raises complex issues of state law, "something the courts of Alabama are in the best position to undertake and, for reasons of federalism, should undertake in this sensitive area." Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000). Accordingly, the balance of factors weigh in favor of declining supplemental jurisdiction, and this court exercises its discretion to dismiss plaintiff's state claim, without prejudice.

An order consistent with this memorandum of opinion will be entered contemporaneously herewith.

DONE.