Opinion
1:99cv56-T
February 4, 2000
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon the corporate defendant's Motion for Summary Judgment, the individual defendant's Motion for Partial Summary Judgment, plaintiffs' responses, and the corporate defendant's reply. Having reviewed the pleadings and conducted a hearing, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Background
A. Claims Asserted
This is an action stemming from alleged sexual harassment in the workplace. Plaintiff contends that the corporate defendant violated Title VII of the Civil Rights Act of 1964 by failing to respond timely to sexual harassment by a supervisory employee in the workplace. As a supplemental claim, plaintiff also contends that the corporate defendant intentionally inflicted emotional distress on her.
For the purpose of ease of use, the undersigned has used the term "plaintiff" in the singular throughout to refer to Joyce M. Reese. Her husband, James Steven Reese, is referred to on occasion as "plaintiff's husband."
As to the individual defendant, plaintiff contends that he sexually harassed her in the workplace, held her paychecks in exchange for sexual favors, touched her in a manner amounting to battery, and falsely imprisoned her. Plaintiff's husband has also made a claim for loss of consortium.
Respective defendants have moved for summary judgment on all claims except the claim for loss of consortium, which is contingent upon plaintiff's statelaw claims against the individual defendant.
B. Factual Background
1. Plaintiff Knew of The Corporate Defendant's Sexual Harassment Policy
In May 1993, plaintiff was hired and worked as a machinist on the second shift. Plaintiff admits that throughout her employment, she was aware of the corporate defendant's sexual-harassment and open-door policies. (Reese Depo., pp. 80-81, 83, 85, Ex. 2, 3). Employees received instruction, reviewed with them annually or biannually, as to the following multiple avenues available to them to report workplace concerns, including sexual harassment: through their chain of command; to the local Human Resources department; to the corporate ombudsman; and to the 1-800 hotline to corporate headquarters. (Hock Depo., pp. 144-45). The sexual-harassment policy, distributed by the corporate defendant in its employee handbook, was individually reviewed with plaintiff. (Reese Depo., pp. 80-81, 83).
Plaintiff also had personal experience with the operation of the sexual harassment policy. In 1995, plaintiff complained to Mark Turner, her direct supervisor, that a coworker named Eddie Phillips was sexually harassing her. It is undisputed that her first claim was investigated promptly and effective action was taken to end the behavior about which she complained. (Reese Depo., p. 548; Turner Depo., pp. 16, 144-45; Harbinson Depo., p. 89). In 1996, another employee complained that plaintiff had told an offensive joke, and plaintiff was the recipient of a prompt reprimand under the sexual-harassment policy. (Reese Depo., p. 141; Turner Depo., p. 13; Harbinson Depo., p. 16).
2. The Individual Defendant Was Not Plaintiff's De Jure Supervisor
The individual defendant, John Parr, was Maintenance Manager at the corporate defendant in 1997 and part of 1998. At the time of the alleged misconduct in this case, he was nearing eligibility for early retirement. (Parr Depo., pp. 26, 225). He worked on the first shift and was not plaintiff's immediate supervisor or in her chain of command. (Reese Depo., pp. 126, 174, 447; Walker Depo., pp. 20-21; Krug Depo., p. 88). Plaintiff's chain of command was Turner; Jerry Krug, Production Manager for Carrier Components; and Fred Harbinson, Manufacturing Manager for Carrier Components. (Reese Depo., pp. 126, 292; Turner Depo., p. 18; Harbinson Depo., pp. 5, 10; Krug Depo., p. 88).
3. The Alleged Relationship Between Plaintiff and the Individual Defendant
The individual defendant and plaintiff developed a relationship some time in 1997. There is a dispute between the parties as to the nature of the relationship. He believed that his relationship with plaintiff was friendly and consensual at all times; plaintiff agrees that their relationship was friendly at the beginning and for some period thereafter. (Reese Depo., pp. 135-36, 138-39).
Members of management have testified that they observed that the relationship between plaintiff and the individual defendant appeared to be friendly and consensual. (Hock Depo., pp. 23, 150; Turner Depo., pp. 131-32; Smith Depo., p. 84; Harbinson Depo., p. 90; Walker Depo., pp. 50; Krug Depo., pp. 80, 86, 88-89).
4. Plaintiff's Addiction to Methamphetamine
Plaintiff alleges that in mid-October 1997, the individual defendant told her that even though he knew of her illegal drug use, he liked her and would not report it. (Reese Depo., p. 39). Plaintiff admits that the individual defendant never asked her, nor threatened her, for sexual favors or anything else in exchange for his silence. (Reese Depo., p. 38). Plaintiff now claims she assumed, however, that he would expect sexual favors in exchange for his silence, (Reese Depo., p. 39) and that they had a sexual encounter in October 1997 (Amended Complaint, ¶ 3) which she never reported to management. (Reese Depo., p. 536; Turner Depo., p. 131; Hock Depo., pp. 93-106, Ex. 1).
On November 3, 1997, plaintiff contacted the outside Employee Assistance Program (EAP) about her several-years-long addiction to methamphetamine ("crank") and other illegal drug use. (Reese Depo., pp. 146, 374-75). The corporate defendant granted plaintiff paid leave for drug rehabilitation from November 3, 1997, to about February 23, 1998. (Reese Depo., pp. 148, 440). When plaintiff returned to work, she had a meeting with Pat Donovan from the EAP, John Hock, the corporate defendant's Human Resource Team Leader, and Turner to discuss her return and any workplace concerns she had. (Donovan Depo., pp. 49-50, 79-82; Hock Depo., p. 39). Plaintiff did not complain then about the individual defendant. (Donovan Depo., pp. 49-50, 79-82).
5. What the Corporation May Have Discovered in Plaintiff's Absence
It is plaintiff's contention that the corporate defendant had reason to know of the alleged ongoing sexual harassment based upon an incident that happened while plaintiff was on rehabilitation leave from the plant. In January 1998, the individual defendant spoke to Bill Smith, Site Manager, about a question of employee benefits relating to plaintiff. (Hock Depo., pp. 113, 154; Smith Depo., pp. 14, 82; Reese Depo., pp. 151-52, 155). Smith stated that he did not know the answer, and that the individual defendant, who also was not knowledgeable about benefits, should not talk to plaintiff about her benefits, but, instead, refer her to Linda Cole and the Human Resources Department or members of plaintiff's direct supervision. (Hock Depo., pp. 113, 154; Smith Depo., pp. 13-16; Reese Depo., p. 152). Smith, who did not want the individual defendant to give plaintiff misinformation about her benefits or to get involved with someone suffering from a drug addiction, advised the individual defendant not to get involved in those issues with plaintiff. (Smith Depo., pp. 15-16, 83; the individual defendant Depo., p. 152). The individual defendant responded that he and plaintiff were friends and that plaintiff had solicited the benefits information from him. (Reese Depo., pp. 93, 174-75; Hock Depo., p. 98; Smith Depo., p. 15; the individual defendant Depo., p. 152).
6. The Corporate Defendant Purportedly Discovers the Alleged Misconduct When Coworkers Complain that Plaintiff is Not Pulling Her Weight
On April 13, 1998, Turner was concerned about plaintiff's time management because he had received complaints from her coworkers that she would leave her work area with the individual defendant and other employees, take excessive smoke breaks, and return late from lunch. (Turner Depo., pp. 12, 17, 25-26, 34; Harbinson Depo., pp. 28-29, 99; Krug Depo., p. 52). Turner observed the individual defendant and plaintiff take a smoke break together that very day. (Turner Depo., pp. 41-42). About the same time, Krug and Harbinson also expressed concerns to Turner about plaintiff's time management. (Turner Depo., pp. 27-28, 48; Harbinson Depo., p. 31; Krug Depo., pp. 53-54).
The next day, Turner talked separately to the individual defendant and plaintiff regarding the time they spent together during second shift hours when plaintiff should have been working. (Reese Depo., p. 214; Turner Depo., pp. 36, 144). Turner told them that plaintiff needed to be at her work station during her work time and that the individual defendant should not go into the gear lab to ask plaintiff to leave her station. (Reese Depo., p. 222; Turner Depo., pp. 30, 43, 45, 124-25, 145; Harbinson Depo., p. 41). Although alone with Turner, plaintiff did not complain then about her interactions with the individual defendant. (Reese Depo., pp. 214-15, 222, 504; Turner Depo., p. 131). It is undisputed that after his conversation with Turner in April, the individual defendant spent less time with plaintiff at the plant. (Reese Depo., p. 220). At the time of this disciplinary encounter, plaintiff had made no complaints about the individual defendant.
On May 11 or 12, 1998, Harbinson followed up with Turner about Turner's conversations with plaintiff and the individual defendant regarding plaintiff's excessive breaks. (Harbinson Depo., pp. 40-41). They decided that before they would address the situation again with plaintiff, Harbinson should ask the individual defendant's boss, Stan Walker, Facilities Manager, to tell the individual defendant to stop joining plaintiff on long breaks. (Harbinson Depo., pp. 44-45; Walker Depo., pp. 4-5). On May 12, 1998, Harbinson spoke to Walker; the next day, Walker addressed the situation regarding time management with the individual defendant. (Harbinson Depo., pp. 45-46; Walker Depo., pp. 17-18). Walker stated that he had received complaints about the individual defendant spending time with plaintiff during breaks and lunches and causing those periods to be extended and told the individual defendant that it had to stop. (Walker Depo., p. 21).
Walker testified that it was his impression that the individual defendant assumed that Turner had reported the problem to Walker. (Walker Depo., p. 22). The individual defendant stated that he and plaintiff were just friends and there was nothing going on. (Walker Depo., p. 21). Walker reminded the individual defendant that, even as just a friend, he still needed to stay away. (Walker Depo., pp. 21-22). The individual defendant agreed to stay away from plaintiff. (Walker Depo., pp. 22-23).
7. The Individual Defendant Allegedly Threatens Turner
During the morning of May 14, 1998, Cindy Delk, plaintiff's friend and a third-shift coworker, told Turner of a conversation with the individual defendant in which he threatened to get back at Turner. (Turner Depo., pp. 70, 74, 125-26; Harbinson Depo., p. 54; Delk Depo., pp. 61-62; the individual defendant Depo., p. 80). Turner made notes about the conversation and gave them to Harbinson that day. (Turner Depo., p. 70; Harbinson Depo., p. 72, Ex. 1). Later on May 14, 1998, plaintiff received a letter from the individual defendant, which included a threat against Turner. Plaintiff showed the letter to Turner at the end of first shift and gave him the letter at his request. (Plaintiff Depo., pp. 192, 197; Hock Depo., p. 24; Turner Depo., pp. 79-81).
At that time, plaintiff asked Turner to help her stop the individual defendant from visiting her so she would not get in trouble for her time management. (Turner Depo., pp. 81-83). Plaintiff admits that May 14, 1998, was the first time she informed any member of management that she did not welcome the individual defendant's visits. (Reese Depo., pp. 214-15, 222; Hock Depo., p. 148; Turner Depo., p. 125). It is undisputed that plaintiff made no mention of sexual harassment at that time. Id.
About 5 p.m. or 5:30 p.m. on May 14, Turner relayed his phone conversation with Delk to Harbinson and gave Harbinson the individual defendant's letter. (Turner Depo., pp. 83, 125; Harbinson Depo., p. 54). Turner told Harbinson that the individual defendant was coming back to the plant at 8 p.m. that evening and that plaintiff stated she intended to "break off" or "break up" with the individual defendant. (Harbinson Depo., pp. 56-57; Walker Depo., p. 27). Harbinson called Walker, who had already left the plant, about the letter and the individual defendant's intended return that night. (Walker Depo., pp. 26-27). Turner, Harbinson, and Walker testified that prior to May 14-15, they had no knowledge that any relationship between the individual defendant and plaintiff was other than a consensual friendship. (Turner Depo., pp. 131-32; Harbinson Depo., pp. 39, 90-94, 96; Walker Depo., pp. 26-27). (While Smith has testified in a similar vein, plaintiff contends that his January 1998 encounter with the individual defendant should have given him knowledge or reason to know that something was amiss.) Harbinson left a message for Hock at the plant that he was going to talk to Delk the next morning and that as soon as Hock came in, he should see Harbinson to discuss some information. (Harbinson Depo., p. 62).
Walker returned to the plant, and he and Harbinson watched the parking lot from inside an upstairs office. (Harbinson Depo., pp. 58-60; Walker Depo., p. 27). They saw the individual defendant drive up to the plant, plaintiff get into his truck, and the truck drive out of sight. (Harbinson Depo., p. 60; Walker, p. 27). Harbinson got into his car and drove to the back of the parking lot, where he found plaintiff and the individual defendant in the individual defendant's truck. (Harbinson Depo., p. 61). Harbinson drove over to Walker's vehicle, told him what he had seen, and then watched the individual defendant drive back to the front of the plant, let plaintiff out, and drive off. (Harbinson Depo., p. 61; Walker Depo., p. 28). Harbinson observed that plaintiff looked normal. (Harbinson Depo., p. 61).
Later that night, plaintiff gave Delk other letters that she had received from the individual defendant. (Reese Depo., pp. 190, 513). Delk gave the letters in a sealed envelope to Krug the next day, and Krug gave them to Hock. (Reese Depo., pp. 190, 192; Hock Depo., p. 49; Krug Depo., pp. 66-67). About 5 a.m. the morning of May 15, 1998, Harbinson met with Delk, who conveyed her conversation with the individual defendant in which he threatened to get Turner. (Harbinson Depo., p. 62, 74-75, Ex. 4).
8. Disciplinary Action is Taken Against the Individual Defendant
The letters reached John Hock the morning of May 15, 1998. (Reese Depo., p. 189; Hock Depo., p. 47). Immediately after Hock read the letters, he, Smith, and Walker met with the individual defendant and asked him whether he sent any letters to plaintiff. The individual defendant denied that he had. (Hock Depo., pp. 47, 52, 55; Smith Depo., pp. 18-19; Parr Depo., p. 195). Hock then asked him whether plaintiff was accepting his attentions willingly. (Hock Depo., p. 29). The individual defendant reiterated that they had a friendship. (Hock Depo., pp. 29, 54-55). Hock suspended the individual defendant immediately, pending an investigation. (Hock Depo., p. 55; Smith Depo., p. 18). Smith and Hock specifically ordered the individual defendant not to speak to plaintiff. (Hock Depo., pp. 55-56; Smith Depo., p. 19).
9. Plaintiff is Informed of the Action Taken
On the afternoon of Friday, May 15, 1998, Hock and Harbinson met with plaintiff and Delk. (Hock Depo., pp. 47, 56; Harbinson Depo., p. 67, Ex. 3). Plaintiff told them that the individual defendant had called her after his meeting and had related what happened in that meeting. (Hock Depo., p. 56; Harbinson Depo., p. 69).
Hock asked plaintiff about the letters Delk had provided. (Hock Depo., p. 56). Plaintiff stated that the individual defendant had given them to her over a period of several months. (Hock Depo., p. 57). Plaintiff and Delk stated that plaintiff was afraid of the individual defendant and what he might say or do to her or her husband, who was physically violent. (Delk Depo., pp. 70-71). Hock asked plaintiff if she had a sexual relationship with the individual defendant. (Hock Depo., p. 28; Harbinson Depo., p. 74). Plaintiff allegedly said they had a friendship. (Hock Depo., p. 28). Hock reassured plaintiff that she did not have to worry about the individual defendant being at the plant again. (Reese Depo., pp. 210-11, 534; Harbinson Depo., p. 69). It is undisputed that the individual defendant was never again at the plant while plaintiff was there. (Reese Depo., p. 224).
10. The Individual Defendant Attempts to Contact Plaintiff After He is Suspended
On Tuesday, May 19, 1998, Hock, Smith, and Walker met with the individual defendant off-site. (Hock Depo., pp. 67-68; Smith Depo., pp. 31, 33). The individual defendant then admitted giving the letters to plaintiff and threatening Turner. (Hock Depo., p. 68; Smith Depo., p. 33). He also admitted calling plaintiff in violation of a direct order. (The individual defendant Depo., pp. 199-200). Smith and Hock reiterated the order that he was not to contact plaintiff. (Smith Depo., p. 35; Parr Depo., p. 203). The individual defendant asked what was going to happen to him. (Hock Depo., p. 68). They told the individual defendant that it did not look good because he (1) had spoken to plaintiff on at least one occasion against a direct order, (2) had written inappropriate letters to plaintiff, and (3) had threatened a coworker. (Hock Depo., pp. 68-69; Smith Depo., p. 36).
About June 9 or 10, 1998, plaintiff complained to Hock that the individual defendant was attempting to call her at the plant. (Reese Depo., pp. 228-29). Hock told plaintiff that he would tell the individual defendant again to leave her alone and would instruct the security guards not to let calls from the individual defendant through to plaintiff. (Reese Depo., pp. 229-30, 257; Hock Depo., p. 60). Hock gave the instructions to the security guard who worked on plaintiff's shift and reiterated to the individual defendant that he was not to call or talk to plaintiff. (Hock Depo., pp. 78, 139). Plaintiff thereafter never received at work a call or information of another attempted call from the individual defendant. (Reese Depo., pp. 246, 256, 258).
11. The Individual Defendant is Further Disciplined
On June 22 or 23, 1998, Hock met with the individual defendant to implement the management decision that the individual defendant would never return to his employment because of the reasons discussed in May. (Reese Depo., p. 226; Hock Depo., pp. 115-16). The individual defendant entered into a separation agreement under which he would receive severance and his early retirement benefits on conditions including that (1) he must go to EAP, and EAP staff must certify that he was not a threat to plaintiff or others; and (2) he must refrain from contacting plaintiff. (Plaintiff Depo., p. 225; Hock Depo., pp. 74, 127-29; Smith Depo., p. 42). The court notes at this point that plaintiff takes exception to the characterization of early retirement (and a retirement party) as punishment, and the corporate defendant characterizes such exception as a "quibble," having no basis in law. The individual defendant complied with the conditions under which he was allowed early retirement, and plaintiff did not complain about the individual defendant again. (Plaintiff Depo., p. 253; Parr Depo., pp. 232, 234).
12. Plaintiff's Recollection and Perception of the Individual Defendant's Supervisory Control Over the Terms and Conditions of Her Employment
Plaintiff has presented evidence of an implicit threat by the individual defendant concerning her drug use and his ability to intercept her paychecks. As discussed below in Section III, the court finds such evidence relevant to an inquiry as to whether the individual defendant was plaintiff's de facto supervisor.
The individual defendant had been employed with the company for 30 years and was, as he later informed the plaintiff, well-connected with the Vice President, Randy Rintz. (Reese Depo., p. 173; Parr Depo., p. 170). He was one of seven "direct reports" to the plant manager, Bill Smith. (Harbinson Depo. p. 9).
Plaintiff avers that the individual defendant accosted her and informed her that he knew about her drug problem. She states that he placed his hand on her shoulder and announced that because he "liked her," he would not disclose this fact to anyone. Plaintiff testified that she knew at the time that she was going to have to "pay for" his silence by submitting to "sexual favors." (Plaintiff Depo., p. 34-36, 38-39, 377).
About a week later, the individual defendant allegedly called the plaintiff to his office one evening, waited for the adjacent offices to clear, closed and locked his door, closed the blinds, and attempted to have sexual intercourse with the plaintiff. (Plaintiff Depo., p. 40; 43-48). The individual defendant then began to appear at plaintiff's work station and take her off for smoke breaks to the break area or other areas of the plant. (Plaintiff Depo., p. 51-52).
Plaintiff testified that following that event in the individual defendant's office, she realized that as long as she was using drugs, the individual defendant would continue to blackmail her and force himself on her. She testified, "I thought if I could get off this [crank], I won't have to do this no more." (Plaintiff Depo., p. 51). With her health deteriorating, she decided to seek help. Id. Plaintiff called the EAP and voluntarily submitted to a program of drug rehabilitation. (Plaintiff Depo., p. 428-30).
Plaintiff was out of work for four months. (Plaintiff Depo., p. 148). Initially, she contends that she was weak, sick, and vulnerable, but she made a full recovery over time. (Donovan Depo., p. 21, 48). Plaintiff opines that despite her vulnerability, the individual defendant remained relentless in his attentions to her. He allegedly called her at home (using his position as a high-level manager as a pretext to "check up on her" or to inquire about her "paperwork" to get past her husband), wrote letters, sent cards, and attempted to communicate with her children. Plaintiff stopped answering the telephone and pretended that she was not there. (Plaintiff Depo., p. 169-173; Delk Depo., p. 46-47).
The individual defendant allegedly persuaded Jim Mackey, a security guard, to help him intercept plaintiff's paychecks in order to force her to meet with him. (Plaintiff's Depo., p. 170; Metcalf Depo., p. 26). During the investigation, the corporate defendant did not consider this to be a matter of concern. (Hock Depo. pp. 95, 116).
In what appears to amount to a material factual dispute (see above), Harbinson testified that he and others, including Turner, had noticed the individual defendant's excessive attention to plaintiff in 1997 (as opposed to 1998, as otherwise testified to), and he discussed this with Bill Smith, the Plant Manager, before Christmas in 1997. (Harbinson Depo., p. 32). According to Harbinson, Smith spoke to the individual defendant, who informed Smith that he and the plaintiff were just "close friends" and that there was nothing going on. (Harbinson Depo. pp. 33-34). According to plaintiff, the individual defendant related to her the conversation he had with Smith. He also stated that despite Smith's admonition to stay away from the plaintiff, he told Smith that he would talk to anyone he wanted and that no one told him with whom to talk. (Plaintiff Depo., pp. 92-95, 311; Parr Depo., Exhibit 3).
Plaintiff contends that once she returned to work in February 1998, the individual defendant's harassment intensified, but that she made every effort to avoid him, soliciting help from her friends at work and submitting to his demands only when necessary to appease his anger. (Plaintiff Depo., p. 471-72; Delk Depo., p. 50; Metcalf Depo., pp. 47-50). When the individual defendant no longer had the drug-use card to play (voluntary submission to rehabilitation apparently takes drug abuse out of play for disciplinary action at the plant), his threats, according to plaintiff, turned to ruination of her marriage, getting her fired, and general intimidation through temper and rage. (Plaintiff Depo., p. 151, 156-57, 173; Delk Depo., pp. 49, 52, 70-71, 83, 87-88; Metcalf Depo., pp. 15-19, 45-46; Parr Depo., Exhibit 20).
Plaintiff contends that the individual defendant's constant and continued visits to her work station and insistence that she leave with him were obvious to her coworkers and to management personnel. One of her coworkers, Steve Metcalf, spoke to plaintiff's supervisor, Mark Turner. (Metcalf Depo. p. 51). Metcalf told Turner, "Something needs to be done as far as this harassment goes. It's harassment. You can't harass people on the work place." (Metcalf Depo. p. 52). Turner responded, "I know what you mean." (Metcalf Depo. pp. 52-53). Eventually, Mark Turner spoke to the individual defendant. (Plaintiff Depo., p. 175-76, 214-19, 221-22; Turner Depo. pp. 76; Delk Depo. p. 52-53, 176, 178, 182). According to Turner, the individual defendant's reaction was "negative," and "defensive." (Harbinson Depo. p. 41-42).
13. Alleged Impact on Plaintiff
Plaintiff contends that the inability or unwillingness of management to control the individual defendant resulted in such emotional distress that she was hospitalized. (Plaintiff Depo., p. 256-258). She was placed on disability in June of 1998 and returned to work in August of that year. While she was out on medical leave, plaintiff learned that the individual defendant had taken early retirement and had been given a generous severance package and a party. (Plaintiff Depo., pp. 223-25). Plaintiff contends that despite her hospitalization, management never informed her about the nature or extent of any investigation into her complaints or what, if any, action had been taken to remedy the problem. (Plaintiff Depo., p. 226-27).
14. Plaintiff Receives a Threatening Letter After the Individual Defendant Retires and Leaves Work
Shortly after returning to work, plaintiff states that she received an anonymous letter blaming her for the individual defendant's retirement and threatening her with serious harm. (Parr Depo., Exhibit 25). Still on medication for stress and depression, she left work that day and has not returned. (Plaintiff Depo., pp. 249-51, 302; IME Report).
II. Preliminary Considerations Concerning Motions for Summary Judgment
A. Jurisdiction
This matter arises under Title VII of the Civil Rights Act of 1964, as amended — 42, United States Code, Sections 2000e, et seq. Plaintiff claims that she was sexually harassed by a coworker or supervisor and was constructively discharged from her employment with the corporate defendant. She timely filed a charge of discrimination with the Equal Employment Opportunity Commission, received a right-to-sue letter, and timely filed this civil action. This court, therefore, has jurisdiction over plaintiff's claims. 28 U.S.C. § 1343; 42 U.S.C. § 2000e(5)(f)(3).
In addition to claims made pursuant to the laws of the United States, plaintiff has claimed intentional infliction of emotional distress, along with a number of other state-law claims asserted by her and her husband against the individual defendant. Those claims are governed by the laws of the State of North Carolina. This court's jurisdiction over all state-law claims is pursuant to statutory supplemental jurisdiction, which provides that a federal court's original jurisdiction extends to non-federal claims when the federal question is substantial and the claims asserted could be brought in one proceeding. In United Mine Workers v. Gibbs, 383 U.S. 715, 727(1966), the Supreme Court found, as follows:
[If] considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in the federal courts to hear the whole.
Inasmuch as it appears that plaintiff's state-law claims arise from the same transactions or occurrences upon which her federal claim is based, the issues are properly joined in this action, and jurisdiction can be asserted over those claims as well as the federal claim.
B. Summary Judgment Standard
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986).
By reviewing substantive law, as the court does in Section III infra, the court may determine what matters constitute material facts.Anderson, supra. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of defendants' motions for summary judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
III. Discussion
1. Introduction
A. Title VII Claim
Title VII has created two recognized causes of action — quid-pro-quo harassment and a hostile work environment. The respective burdens in the two types of sexual-harassment claims may be met with direct evidence, introduction of statements, or circumstantial evidence which is relevant and probative. Moore v. City of Charlotte, 754 F.2d 1100 (4th Cir.), cert. denied, 472 U.S. 1021 (1985). As discussed infra, plaintiff's burden is to show that there is a genuine issue of material fact warranting trial.
2. Quid-Pro-Quo Harassment Quid-pro-quo harassment is defined as "harassment in which a supervisor demands sexual consideration in exchange for job benefits," Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983), see also Spencer v. General Electric Co., 894 F.2d 651, 658 (4th Cir. 1990); and consists of conditioning employment benefits on the employee's submitting to the sexual advances or threatening adverse employment actions if the employee does not submit, see Tomkins v. Public Serv. Elec. Gas Co., 568 F.2d 1044 (3d Cir. 1977). "Benefits" may include the taking of adverse employment action against an employee who refuses to submit to the supervisor's sexual advances. Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987). Although plaintiff has alleged that sexual favors were exchanged for benefits, her brief makes clear that she is relying upon a hostile-work-environment theory.
3. Hostile Work Environment
In order to maintain a claim of hostile work environment, it is required that the following four specific elements be shown:
(1) that the conduct was unwelcome, (2) that the harassment was based on sex, (3) that the harassment was sufficiently pervasive or severe to create an abusive working environment, and (4) that some basis exists for imputing liability to the employer.Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989), vacated in part, 1989 U.S. App. LEXIS 13074 (4th Cir. 1989), vacated 900 F.2d 27 (4th Cir. 1990). The "notice" requirement can be rebutted by the employer directly or through evidence which shows the employer took prompt remedial action. Id.
"Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace." Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, 117 S.Ct. 70(1996). Rather, its purpose is to protect a "reasonable person" from an environment in which abuse is sufficiently severe or pervasive as to alter the conditions of that person's employment. Id. at 753 (citingHarris v. Forklift Sys., Inc., 510 U.S. 17, 19(1993), and Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 67(1986)).
4. Analysis of Plaintiff's Title VII Claim
a. Standard Applicable Where Harassment is By a Supervisor
In the context of employer liability, the law recognizes a distinction between harassment by a supervisor and harassment by a coworker. It is the corporate defendant's contention that the individual defendant should be considered to be a coworker because he did not have traditional supervisory authority over plaintiff.
In Burlington Industries v. Ellerth, 524 U.S. 742(1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 141 L.Ed.2d 662(1998), the United States Supreme Court clarified the circumstances under which an employer may be held liable for a supervisor's conduct giving rise to a claim for sexual harassment based upon a hostile work environment:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule, Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.Burlington Industries, supra, 524 U.S. at ___, 141 L.Ed.2d, at 655. The vicarious-liability standard for supervisors was adopted in Faragher because (1) the victim "may well be reluctant to accept the risks of blowing the whistle on a superior"; and (2) "the employer has a greater opportunity to guard against misconduct by supervisors than by common workers; [and] greater opportunity and incentive to screen them, train them, and monitor their performance." Id., at 686.
b. Determining Whether the Individual Defendant Was a Supervisor
As discussed at the hearing, the law guiding a determination of who is and who is not a supervisor in the context of Title VII is developing. The corporate defendant contends that although the individual defendant was a management level employee, he was neither plaintiff's immediate supervisor nor anywhere in her chain of command. The corporate defendant argues, therefore, that the "coworker standard" applies and that it is entitled to summary judgment. This is important because, under Faragher, an employer is vicariously liable for a hostile work environment created by a supervisor, while a negligence standard applies to misconduct by coworkers.
Post-Faragher, the Court of Appeals for the Fourth Circuit has continued to apply a negligence standard when analyzing an employer's liability for a hostile environment created by a coworker. See Mikels v. City of Durham, 183 F.3d 323, 333 (4th Cir. 1999). Faragher held that vicarious liability attaches where the hostile environment was created by a supervisor "with immediate or successively higher authority over an employee," and the Mikels court described such authority as supervisory authority over the victim, such as the authority to hire, fire, promote, reassign with significant responsibilities, or cause a significant change in benefits. Id., at 332-33. The inquiry, therefore, is whether the alleged harasser had the power to take tangible employment actions against plaintiff. Id.
There is no evidence of record that the individual defendant had actual authority to, in any way, affect tangible employment actions against plaintiff. Plaintiff's speculative evidence as to the influence he might have had with her supervisor is not relevant or cognizable. Speculation and conjecture raise a mere possibility of discrimination rather than the reasonable probability which is necessary to support an inference of discrimination. Lovelace v. Sherwin-Williams, supra, at 241-42. Speculative assertions are not enough to withstand summary judgment,Goldberg v. B. Green and Co., 836 F.2d 845, 848 (4th Cir. 1988); and conclusory statements (like those contained in the response) will not satisfy plaintiff's burden in responding to a motion for summary judgment. Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d 211 (4th Cir. 1987). Unsupported allegations "do not confer talismanic immunity from Rule 56." Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985).
Putting aside plaintiff' speculative evidence, the undersigned has found most important plaintiff's evidence concerning the individual defendant's alleged power to intercept and hold her paycheck. TheMickels court emphasized that the inquiry must be whether the supervisor had the power to affect tangible employment benefits. Perhaps no more important employment benefit is the unfettered ability to pick up one's paycheck. While there is no evidence that the corporate defendant granted the individual defendant such authority, plaintiff has presented evidence upon which a reasonable fact finder could determine that the individual defendant had apparent authority. Drawing that, as this court must do, in plaintiff's favor, a reasonable inference arises from such evidence that if the individual defendant had the ability to control a person's paycheck, it would be reasonable for that person to assume he had the authority to impact other tangible aspects of that person's employment.
The undersigned agrees with corporate defendant's argument that only threats and actions related to the conditions of employment are relevant to such inquiry and has disregarded plaintiff's evidence concerning alleged threats of interference with plaintiff's home life.
In addition, the individual defendant was one of only seven "direct reports" to the plant manager. He had "higher" authority over the plaintiff and the plaintiff's immediate supervisor, Mark Turner, with whom he also had a long-time, personal relationship. (Reese Depo., p. 173-76; Turner Depo., p. 7-10). Evidence has been tendered that the individual defendant used such position to inform other management personnel, even the plant manager, not to interfere with his relationship with plaintiff. In one letter, he suggested that he should review her next grievance: "Something I wanted to tell you. Before you sign another disciplinary sheet see if they will let you have it to look over or whatever. Then let me read it so I can be sure that you aren't getting screwed." (Reese Depo., p. 173-76; 235; Parr Depo., Exhibit 5).
Based upon a close review of the facts as applied to the relevant case law, the undersigned must find that a genuine issue of material fact exists on the threshold issue of whether the individual defendant was plaintiff's de facto supervisor.
c. Plaintiff's Prima Facie Case
Having determined that plaintiff has come forward with evidence upon which a finding could be made that the individual defendant was, de facto, her supervisor, the undersigned will now address plaintiff's next burden — to produce evidence as to each element of a prima facie case of vicarious liability.
Before the decisions in Burlington Industries and Faragher, a plaintiff had to prove four elements to establish a hostile work environment:
(1) the subject conduct was unwelcome;
(2) it was based on the sex of the plaintiff;
(3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and
(4) it was imputable on some factual basis to the employer.Brown v. Perry, 184 F.3d 388, 393 (4th Cir. 1999). Following Burlington Industries and Faragher, an employee bringing a sexual-harassment claim under Title VII, alleging harassment by a supervisor with immediate or successively higher authority over the employee, need only establish the first three elements. Brown, supra, at 394.
Although such rulings clarified the circumstances under which an employer will be held vicariously liable for the actions of a supervisor in creating a hostile work environment, the existence of a hostile work environment remains a threshold question in determining whether a plaintiff can prove discrimination in violation of Title VII. Burlington Industries, supra, at 648. In analyzing the parameters of a claim of hostile work environment, the Supreme Court, in Harris v. Forklift Systems, Inc., 510 U.S. 17, 23(1993), used a totality-of-the-circumstances test. Criteria establishing an abusive environment includes the "frequency of the discriminatory conduct; 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. The sexually objective environment must be "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher, supra, at 676 (citing Harris). Plaintiff has presented evidence that the individual defendant's actions were offensive and that they were sexual, pervasive, and severe. Assuming the truth of plaintiff's verified statements, the undersigned finds most offensive the alleged withholding of a person's wages by a member of management in exchange for sexual favors. It appears that plaintiff has carried her burden as to the second, third, and fourth elements. As to the first element — whether the sexual conduct was welcome — there clearly exists a genuine issue of material fact. The undersigned, therefore, must find that plaintiff has both stated and carried her burden of establishing a prima facie case of sexual harassment.
d. The Corporate Defendant's Affirmative Defense
The corporate defendant argues that even if plaintiff can establish a prima facie case, it has a written sexual-harassment policy that is reasonably designed and reasonably effective. Faragher, supra, at 689. The corporate defendant's sexual-harassment policy does not require that the employee file a formal report of harassment. It states that "[ u]pon knowledge or request, Rockwell [now Mentor] will investigate the circumstances of any persons who believe they are an object [sic] of sexual harassment and the results of the investigation will be reviewed with the person issuing the complaint." (Reese Depo., Ex. 3).
It is plaintiff's theory that summary judgment should not be granted based on the affirmative defense because she has presented evidence that the corporate defendant had "knowledge" of the harassing behavior months before any action was taken, making the plan ineffective in her particular case. Plaintiff has presented evidence that Smith and other supervisors, whose knowledge is charged to the corporation, knew of the individual defendant's sexual misconduct as early as 1997. Plaintiff avers that Fred Harbinson, the individual defendant's upper-level supervisor, discussed the individual defendant's conduct with the plant manager, Bill Smith, in November of 1997. (Reese Depo., p. 297-98). A genuine issue of material fact, therefore, exists as to whether the employer had actual or constructive notice of the harassment and failed to prevent its recurrence, putting at issue the "reasonable care" element of the affirmative defense. The question of constructive knowledge is an issue of fact, and "a court must evaluate the totality of the circumstances both in determining whether the work environment was abusive and in determining whether the conduct was pervasive enough to put the employer on notice." In Splunge v. Shoney's. Inc., 97 F.3d 488 (11th Cir. 1996), the court found that "[t]he hostile environment in this case was so pervasive and managers at the restaurant were so inextricably intertwined in this environment that higher management would be deemed by a jury to have constructive knowledge."
The undersigned finds such notice arguments persuasive, but does not find persuasive plaintiff's arguments concerning the alleged lack of "reasonable care" of the corporate defendant to prevent and correct the harassing behavior following its May 1998 meetings with the individual defendant and the plaintiff. While it is clear that plaintiff takes issue with the individual defendant's receipt of early retirement and a retirement party, there is no dispute that the May 1998 actions of the corporate defendant resulted in immediate removal of the individual defendant from the workplace and an eventual equivalent of a private restraining order within a month. The law at its essence requires an employer to rectify a hostile work environment, but does not require that it be done with malice.
Finally, an issue exists as to whether plaintiff failed to take advantage of preventive or corrective opportunities available to her. Plaintiff should understand that the weight of the evidence is against her on this aspect of her case: not only was a policy in place, she had successfully used it in the past to end sexual harassment and had been disciplined under it for lewd jokes. There is also evidence that when she was asked whether the relationship was consensual, she said yes, and other evidence has been presented that she was afforded many opportunities to report the conduct. However, where reasonableness is at issue, it is left to the fact finder to make such determination. Further, plaintiff, has presented some evidence that any such attempt to avail herself of the policy would have been futile or job threatening, because the individual defendant allegedly represented to her that even the Plant Manager, Bill Smith, had been made aware of a relationship between the two of them and had been put in his place by the individual defendant. Plaintiff has also presented evidence that her coworkers flatly told her direct supervisor that she was being harassed and that her supervisor failed to report such allegations to human resources, but, instead, made a futile attempt to resolve the issue with the individual defendant and was allegedly rebuffed. Arguably, her direct supervisor's knowledge of the alleged harassment is imputed to the company. Davis v. U.S. Steel Corp., 779 F.2d 209 (4th Cir. 1985). InDavis, the appellate court found, as follows:
At the point in time when Stoutz observed Bryan's improper behavior and failed to inform either the company or Bryan that his behavior violated company policies, the matter could be said to have progressed from a frolic of Bryan's own to behavior known to United States Steel and condoned by it. His knowledge of the activities of an employee subject to his supervision, in the face of his inaction, created the possible inference that United States Steel did not object or, in the absence of explicit complaint by Davis, intend to take any steps to curtail Bryan's behavior. Those circumstances would permit the factfinder to infer that toleration by Bryan's employer, United States Steel, of this behavior meant that it was not inimical to the fostering of its purposes.Id., at 211.
e. Conclusion
The undersigned finds that plaintiff has put in issue whether the individual defendant was a de facto supervisor, plaintiff has satisfied her burden of establishing a prima facie case of sexual harassment, and genuine issues of material fact remain as to whether the corporate defendant is entitled to the protections afforded by the affirmative defense. For the reasons set out above, the undersigned will recommend that the corporate defendant's Motion for Summary Judgment on plaintiff's Title VII sexual-harassment claim be denied.
B. Intentional Infliction of Emotional Distress
The corporate defendant has also moved for summary judgment on plaintiff's claim for intentional infliction of emotional distress. The elements of the tort are "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress." Hogan v. Forsyth Country Club, 79 N.C. App. 483, 488, disc. rev, denied, 317 N.C. 334(1986). "It is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery." Id., at 490.
For purposes of making a recommendation as to disposition of the corporate defendant's motion, the undersigned has resolved any disputed facts in plaintiff's favor. Considering all the allegations of the complaint and the proffered evidence, they would "exceed all bounds of decency," West v. King's Dep't Store, Inc., 365 S.E.2d 621, 625 (N.C. 1988); and could be "'regarded as atrocious, and utterly intolerable in a civilized community,'" Wagoner v. Elkin City School Bd. of Educ., 440 S.E.2d 119, 123 (N.C.Ct.App. 1994) (citation omitted). Plaintiff has testified as to the allegedly offensive touching and sexual demands by a member of management, the subsequent hospitalization that she attributes to such conduct, and her inability to return to work. See Waddle v. Sparks, 414 S.E.2d 22, 27 (N.C. 1992). In Hogan, wherein a defendant threatened a plaintiff with bodily injury and advanced on her with a knife after she refused his sexual advances, the appellate court found that plaintiff had stated a cause of action and that defendant's conduct was "beyond the 'bounds usually tolerated by decent society.'"Hogan v. Forsyth Country Club Co., supra, at 491. If this plaintiff's allegation is true, a member of management withheld her paycheck, which in this society is the essence of personal survival and self-esteem, in exchange for sexual gratification. The cause of action for intentional infliction of emotional distress is a last resort for calling to task (1) those who engage in primitive and uncivilized behavior in an attempt to impose their prurient will on others or (2) those in positions of authority and responsibility who allow such conduct to occur or continue. The allegations and evidence proffered appear to fit such profile. The undersigned, therefore, will recommend that this claim go forward.
C. State-Law Claims Asserted Against the Individual Defendant
1. Introduction
The individual defendant has moved for summary judgment on plaintiff's claims of battery and false imprisonment. In doing so, he contends that, in part, those claims are barred by the applicable limitations period and are otherwise subject to dismissal under Rule 56.
2. Battery Claims
a. Statute of Limitations
A claim of battery carries a one-year statute of limitations. N.C. Gen. Stat. § 1-54(3). As described by the North Carolina Court of Appeals:
Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff's cause of action. They are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all.Congleton v. City of Asheboro, 8 N.C. App. 571, 573-74(1970). The statute of limitations begins to run when the plaintiff's right to maintain an action for the alleged wrong accrues. Wilson v. Crab Orchard Dev. Co., 276 N.C. 198, 171 S.E.2d 873(1970). As the battery is complete at the time of the offensive touching, the claim for battery would accrue at the time of the touching. The one-year limitations period for commencement of a battery claim would commence at that point. Inasmuch as plaintiff filed her complaint in this action on March 29, 1999, claims accruing more than one year prior must be dismissed as time-barred.
b. Alleged Batteries Occurring On or After March 29, 1998
A "battery" is the "offensive touching of the person of another without his/her consent. . . ." City of Greenville v. Haywood, 502 S.E.2d 430, 433(1998). Plaintiff's Amended Complaint alleges unwanted sexual conduct and touching by the individual defendant between October 1997 and May 1998. Plaintiff has apparently only testified of one such alleged occurrence — the October 1997 encounter in the individual defendant's office (Reese Depo., p. 384-91, 40-48), which is time-barred. While plaintiff argues in her responsive brief that she was unlawfully touched on a number of other occasions, such as one on the roof of the plant, she has failed to provide any dates for those alleged occurrences or even a more general averment that they occurred on or after March 29, 1998. The individual defendant has the right to assert the statute-of-limitations defense and a right to know when he supposedly committed the acts of which he has been accused. The undersigned will recommend that summary judgment be granted as to these claims.
3. False Imprisonment
a. Statute of Limitations
False imprisonment is the illegal restraint of someone against his or her will. Mobley v. Broome, 248 N.C. 54(1958). Claims of false imprisonment in North Carolina carry a one-year statute of limitations. N.C. Gen. Stat. § 1-54(3). To the extent that plaintiff has alleged claims for false imprisonment that accrued before March 29, 1998, the undersigned will recommend that those claims be dismissed as time-barred.
b. Alleged False Imprisonment as to Claims Accruing on or After March 29, 1998
As discussed above, plaintiff's amended complaint and brief suffer from a lack of specificity as to just when plaintiff was allegedly subjected to false imprisonment on or after March 29, 1998. It is within the realm of reason to believe that a person who was falsely imprisoned would remember when that occurred. Again, the individual defendant has the right to assert the statute-of-limitations defense and a right to know when he supposedly committed the acts of which he has been accused. The undersigned will recommend that summary judgment be granted as to these claims.
4. Loss of Consortium
There is no particular motion for summary judgment on the claim for loss of consortium. To be thorough, the undersigned has considered the extent of such claim and determined that facts appear to have been alleged that would indicate that the claim accrued in early summer 1998. While such a claim is typically derivative (and usually accrues when the underlying tort is committed), the court finds that it may be able to survive even if plaintiff's claims for battery and false imprisonment do not. Finding that such claim is neither time-barred nor wholly dependent upon the viability of plaintiff's other state-law claims against the individual defendant, it will be recommended that the claim for loss of consortium be allowed to move forward, regardless of the disposition of other claims against the individual defendant.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that
(1) the corporate defendant's Motion for Summary Judgment be DENIED in its entirety for the reasons discussed above;
(2) the individual defendant's Motion for Partial Summary Judgment be GRANTED as discussed above; and
(3) the claims of plaintiff's husband for loss of consortium be ALLOWED to go forward even if plaintiff's claims against the individual defendant do not survive summary judgment.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140(1985), reh'g denied, 474 U.S. 1111(1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208(1984).
This Memorandum and Recommendation is entered in response to the corporate defendant's Motion for Summary Judgment (#32) and the individual defendant's Motion for Partial Summary Judgment (#33).