Spivey v. Akstein

Full title: KARAN L. SPIVEY, Plaintiff, v. RICARDO B. AKSTEIN, M.D. and AKSTEIN EYE…

Court: United States District Court, N.D. Georgia, Atlanta Division

Date published: Dec 2, 2005

Civil Action No. 1:04-CV-1003-WSD-CCH (N.D. Ga. Dec. 2, 2005)

Opinion

Civil Action No. 1:04-CV-1003-WSD-CCH.

December 2, 2005

ORDER

C. HAGY, Magistrate Judge

Attached is the report and recommendation of the United States Magistrate Judge in this action in accordance with 28 U.S.C. 636(b) (1) and this Court's civil Local Rule 72.

Pursuant to 28 U.S.C. § 636(b) (1), each party may file written objections, if any, tothe report and recommendation within ten (10) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and failing the transcript of any evidentiary hearing for review by the district Court. If no objections are filed, the report and recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay 714 F.2d 1093 (11th Cir. 1983).

The Clerk is directed to submit the report and recommendation with objections, if any, to the District Court after expiration of the above time period.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION IN AN EMPLOYMENT DISCRIMINATION ACTION

Plaintiff filed the above-styled civil action on April 13, 2004. She claims that Defendants discriminated against her on the basis of her sex and subjected her to sexual harassment, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. She also asserts state law claims of: (a) intentional infliction of emotional distress; (b) failure to maintain a workplace free from unwanted misconduct, sexual harassment, and gender discrimination (hereinafter "failure to maintain a safe working environment" or "unsafe work workplace"); (c) false imprisonment, and (d) battery.

The action is presently before the Court on Defendants' Motion for Partial Summary Judgment [54]¹ ("Motion for Summary Judgment") and on Defendants' Motion to Strike Portions of Plaintiff's Initial Disclosures and to Exclude Witnesses [57] ("Motion to Strike"). In their Motion for Summary Judgment, Defendants seek summary judgment on Plaintiff's Title VII claims (Counts I-IV of her Complaint) and on Plaintiff's state law claims for intentional infliction of emotional distress, failure to maintain a safe working environment, and false imprisonment (Counts V-VII of her Complaint), as well as on Plaintiff's request for punitive damages under Title VII. For the reasons discussed below, the undersigned RECOMMENDS that Defendants' Motion for Summary Judgment [54] be GRANTED IN PART AND DENIED IN PART. The Court RECOMMENDS that Counts I, II, IV, V, VI, and VII be DISMISSED as to both Defendants, and that Count III be DISMISSED as to Defendant Ricardo Akstein, M.D. and that it proceed as to Defendant Akstein Eye Center, P.C. In addition, it is ORDERED that Defendants' Motion to Strike [57] be DENIED WITHOUT PREJUDICE. I. SUMMARY OF DECISION AND RECOMMENDATION

1 The Court advises Plaintiff that she has not complied with this Court's Local Rules with respect to the electronic filing of summary judgment motions and responses thereto. Appendix H to the Local Rules sets out the administrative procedures for filing, signing, and verifying pleadings by electronic means in civil cases. See App. H to Local Rules, NDGa. The procedures explicitly state that: "[u]nless otherwise specified, a paper courtesy copy of all summary judgment motions, to include exhibits, and any response to such motions is required to be filed with the assigned judge." See Appendix H, Section I.A.
Although this requirement had been inadvertently omitted from the Appendix, it was reinserted by April 27, 2005, and on that date, the Court's website prominently noted the correction; this notation is still included on the Court's website. See http://www.gand.uscourts.gov (last visited November 16, 2005). While Defendants' Motion for Summary Judgment was filed prior to April 27, 2005, Plaintiff filed her response to Defendants' Motion for Summary Judgment on May 26, 2005, along with an Appendix including ten exhibits, three of which were filed in multiple parts. These documents were filed in conjunction with this case and with two related cases, Kimsey v. Ricardo Akstein, M.D. et al., 1:04-CV-1001-WSD-CCH (N.D. Ga. Apr. 13, 2004), andSmith v. Ricardo Akstein, M.D. et al., 1:04-CV-1002-WSD-CCH (N.D. Ga. Apr. 13, 2004). The documents incorporating Plaintiff's Appendix, however, have only been included in the docket forKimsey v. Akstein et al., 1:04-CV-1001-WSD-CCH [docket entries 70-73]. It is not the role of the Court to piece together the electronic portions of Plaintiff's Response, which includes hundreds of pages of deposition testimony and several affidavits in addition to her Brief.
Nevertheless, the Court will consider Plaintiff's Brief. The Court, however, DIRECTS the parties to comply with this Court's Local Rules, including the administrative procedures for electronic case filing. In addition, the Clerk is DIRECTED to amend the docket in this case to reflect that Docket Entries [70-73] in Kimsey v. Akstein et al., 1:04-CV-1001-WSD-CCH were filed in this case as well.

Defendants seek summary judgment on Plaintiff's Title VII claims (Counts I-IV), including her request for punitive damages under those claims, as well as on her state law claims for intentional infliction of emotional distress (Count V), failure to maintain a safe working environment (Count VI), and false imprisonment (Count VII). The Court finds that Defendant Ricardo Akstein, M.D. ("Dr. Akstein" or "Akstein"), as an individual, cannot be held liable under Title VII, and that Plaintiff's Title VII claims (Counts I-IV) can be stated against only her employer, Akstein Eye Center, P.C. (the "Eye Center"). Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment be GRANTED on that ground and that all Title VII claims against Dr. Akstein be DISMISSED.

As for the claims against the Eye Center, the Court finds that a fact question exists as to whether the alleged sexual harassment perpetrated by Dr. Akstein against Plaintiff was severe or pervasive enough to have altered the terms, conditions, or privileges of her employment at the Eye Center. Furthermore, while Plaintiff cannot show that her termination was a culmination of the harassment against her, the Court finds that the Eye Center can be held liable for the actions of its principal and alter ego, Dr. Akstein. Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment on Plaintiff's quid pro quo claim (Count I) be GRANTED and that this claim be DISMISSED, but that Defendants' Motion for Summary Judgment on Plaintiff's sexually hostile work environment claim (Count III) be DENIED and that this claim proceed against the Eye Center only.

The Court also finds that Plaintiff has failed to point to similarly situated male employees treated more favorably than she was. Based on this failure, and based on her failure to show any connection between her discharge, which was based on a determination that she had engaged in misconduct, and her sex, her discriminatory discharge claim (Count II) also fails. Finally, Plaintiff's remaining Title VII claim, which she alleges is based on "gender discrimination without tangible employment action" (Count IV), fails because it is not a recognized cause of action. Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment on Counts II and IV be GRANTED, and that these claims be DISMISSED against both Defendants.

As to that portion of Defendants' Motion for Summary Judgment seeking a ruling on Plaintiff's request for punitive damages under Title VII, the Court finds that, because her sexually hostile work environment claim stands, and because of fact issues as to intent, the Court should not determine whether punitive damages are warranted at this time.

Finally, Defendants have moved for summary judgment on Plaintiff's intentional infliction of emotional distress claim (Count V), her unsafe workplace claim (Count VI), and her false imprisonment claim (Count VII) under Georgia law. The Court finds that the actions as alleged against Defendants are not sufficiently outrageous to satisfy the standards of intentional infliction of emotional distress under Georgia law, and therefore, that this claim fails. In addition, the Court finds that Plaintiff cannot state a claim for an unsafe workplace for allegations amounting to emotional distress, and therefore, that this claim fails as well. Finally, the Court finds that Plaintiff cannot raise a question of material fact as to whether she was falsely imprisoned and, therefore, that this claim fails. Accordingly, the Court RECOMMENDS that Counts V-VII of Plaintiff's Complaint be DISMISSED against both Defendants.

II. BACKGROUND FACTS

A. PRELIMINARY MATTERS

Plaintiff has filed a response to Defendants' "Statement of Material Undisputed Facts" ("SMF"), attached to her Response to Defendants' Motion for Summary Judgment [74], in which she denies SMF ¶¶ 9-23, 35, 40, and 44. In that response, however, Plaintiff has not cited to any evidence in the record controverting Defendants' material facts. According to Local Rule 56.1B.(2)(a)(2), "[t]his Court will deem each of the movant's facts as admitted unless the respondent: (i) directly refutes the movant's facts with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant's fact; or (iii) points out that the movant's fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1B.(1)." LR 56.1B.(2)(a)(2), ND Ga.

Because Plaintiff has failed to observe the Local Rules by failing to properly controvert any of Defendants' facts in her Response to Defendants' SMF, the Court must deem Defendants' material facts admitted by Plaintiff. See Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2001) (citing Jones v. Gerwens, 874 F.2d 1534, 1537 FN 3 (11th Cir. 1989)).

While Plaintiff has included a discussion of the facts in her Brief, which apparently is intended to dispute portions of Defendants' SMF, see Plaintiff's Memorandum in Support of her Response to Defendants' Motion for Summary Judgment ("Pl.'s Br.") at 4-11, that discussion is not adequate. Local Rule 56.1B.(2)(a)(1) states specifically that a "response [to a movant's SMF] shall contain individually numbered, concise, non-argumentative responses corresponding to each of the movant's numbered undisputed material facts." LR 56.1B.(2)(a)(1), ND Ga. Further, this response must be in a separate document filed "with the responsive brief." LR 56.1B.(2), ND Ga (emphasis added). The Court is not to consider any fact "set out only in the brief and not in the [respondent's] statement of undisputed facts." LR 56.1B(2)(b), which incorporates this requirement for LR 56.1B(1)(a).

Plaintiff also has filed a "Statement of Material Facts as to Which There is a Genuine Issue to Be Tried" [75] ("PSMF"). And, although Defendants failed to respond to this statement as required under Local Rule 56.1B.(2)(c), many of these facts are not material,² or are not in actual dispute.³ Still others make no sense,⁴ or are not supported by specific citations to the evidence.⁵ See LR 56.1B.(1) ("The court will not consider any fact: (a) not supported by a citation to evidence (including page or paragraph number")).

2 See, e.g., PSMF ¶¶ 44 ("Defendants did not know why [employee Danyle Prichard Kimsey] was in the hospital and did not ask.") (citing Deposition of Linda Bunch ("Bunch Dep.") [70] at 65; Deposition of Ricardo B. Akstein, M.D. ("Akstein Dep.") [69] at 210). Ms. Kimsey is the plaintiff in the action Kimsey v. Akstein et al., 1:04-CV-1001-WSD-CCH, and thus, whether Defendants knew she was in the hospital is not material to Plaintiff's case.

3 See, e.g., PSMF ¶ 1 ("Plaintiff was an employee of Akstein Eye Center from July 10, 2001 until July 11, 2003") (citing Compl. ¶ 8); cf. SMF ¶ 2 ("Plaintiff was an employee of Akstein Eye Center from July 10, 2001 to July 11, 2003.") (citing Compl. ¶ 8). See also PSMF ¶ 4 ("Plaintiff was initially employed at the front desk. In 2002, she was assigned to a position posting accounts.") (citing Deposition of Karan Spivey ("Spivey Dep."), attached as Ex. 3 to Defendants' Motion for Suummary Judgment, [Docket Entry 71 in Kimsey v. Akstein Eye Center et al., 1:04-CV-1001-WSD-CCH] at 12); cf. SMF ¶¶ 3, 5 ("Plaintiff's initial position with Akstein Eye Center was to work the front desk, checking in patients and keeping their records and files . . . In 2002, Plaintiff was promoted to a posting position, in which she was responsible for taking patients' payments for their visits as they checked out, posting the patients' payments to their accounts in the system, preparing deposits and making deposits.") (citing Spivey Dep. at 25, 13).

4 See, e.g., PSMF ¶ 32 ("All this had gone on with Brandy Martinez Smith, who had just resigned from Akstein Eye Center.") (citing Deposition of Danielle Prichard Kimsey, attached as Ex. 2 to Defendants' Motion for Suummary Judgment, [Docket Entry 71 inKimsey v. Akstein Eye Center et al., 1:04-CV-1001-WSD-CCH] at 73).

5 See, e.g., PSMF ¶ 8 ("Earlier, Akstein had given Plaintiff his cell phone number and asked her to come to the office on the weekend, not for Akstein Eye Center work, but just to `come in and be with me.'") (citing no evidence); PSMF ¶ 18 ("She often cried herself to sleep at night because of the things she was having to endure at Akstein Eye Center.") (citing generally to Spivey Dep.).

Even if the Court were to construe Plaintiff's discussion of the facts in her Brief or her PSMF as responses to Defendants' material facts or as statements of disputed facts, Plaintiff has still failed in both documents to respond to many of Defendants' material facts, and it is difficult for the Court to discern from them which facts Plaintiff controverts, and as a result, which facts are in genuine dispute.

Based on the repeated indicia that Plaintiff's PSMF and her statement of facts in her Brief are in violation of this Court's Local Rules, are unreliable, and do not controvert Defendants' SMF, the Court is inclined to give them no weight in making its recommendation. Nevertheless, the Court must view all facts in the light most favorable to Plaintiff, and so, where necessary, the Court has supplemented its discussion of the facts with citations to the record, including those citations identified in Plaintiff's unopposed PSMF. Matsushita Elec. Indus., Inc. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir. 1993). Furthermore, because Defendants have accepted as true most of Plaintiff's allegations regarding the alleged sexual harassment, see SMF FN 1, most of the facts in relation to Dr. Akstein's conduct are not in dispute.

B. STATEMENT OF FACTS

Defendant, the Eye Center, is an ophthalmology practice, in which Defendant Dr. Akstein engages in the ophthalmic care of his patients. SMF ¶ 1; Deposition of Ricardo Akstein, M.D. [69] ("Akstein Dep.") at 31-32. Plaintiff⁶ began her employment with the Eye Center on July 10, 2001, and was employed there from that date until July 11, 2003. SMF ¶ 2; Compl. ¶ 8. Plaintiff's initial position with the Eye Center was to work at the front desk, checking in patients and maintaining their records and files. SMF ¶ 3; Deposition of Karan Spivey, attached as attached as Ex. 3 to Defendants' Motion for Suummary Judgment, [Docket Entry 71 in Kimsey v. Akstein Eye Center et al., 1:04-CV-1001-WSD-CCH] at 12. Linda Bunch, the Office Administrator, was Plaintiff's supervisor. SMF ¶ 4; Spivey Dep. at 25.

6 Plaintiff's name has changed to Karan Pierce since the filing of her lawsuit. The Court will refer to Plaintiff as "Ms. Spivey" or "Plaintiff." See SMF FN 2.

In 2002, Plaintiff was promoted to a posting position, in which she was responsible for taking patients' payments for their visits as they checked out; posting the patients' payments to their accounts in the company's accounting system; preparing deposits, and making deposits. SMF ¶ 5; Spivey Dep. at 13.

When a patient checked out of the Eye Center, Plaintiff would post his or her payment to a ledger, which would then be used as the basis for determining what amount of money was collected that day. SMF ¶ 6; Spivey Dep. at 13-14. Patients submitted their payments in different forms, including cash, checks, and credit card payments, and Plaintiff was responsible for keeping track of the payments as they came in from patients. SMF ¶¶ 7-8; Spivey Dep. at 17, 24.

Plaintiff alleges that she was subjected to several instances of inappropriate sexual conduct by Dr. Akstein. Some of the facts surrounding Dr. Akstein's conduct toward Plaintiff are in dispute, although, as discussed supra, Defendants have assumed that much of what Plaintiff has alleged is true for purposes of their Motion for Summary Judgment. See SMF FN 1.

In fact, it appears that Defendants have assumed even more inappropriate conduct on the part of Dr. Akstein than Plaintiff herself has alleged or has discussed in her PSMF or Brief. Thus, it appears that Plaintiff has benefitted from failing to respond to Defendants' SMF in that respect. For purposes of this Report and Recommendation, the Court will view all evidence in favor of Plaintiff, and thus will consider all of the events alleged by Defendants. Much of the behavior that Plaintiff generally endured (as alleged by the Defendants) was testified to during her deposition and included the following: that Dr. Akstein frequently gave her a "seductive look," followed by comments such as "[y]ou're a very pretty woman;" that, on six or more occasions during her two-year employment, Dr. Akstein looked at Plaintiff, licked his lips, and blew her a kiss, and that, occasionally, when Plaintiff would sit at her desk posting patient records, Dr. Akstein would put his arm around her, tell her she was beautiful, and kiss her on the side of her forehead. SMF ¶¶ 29, 31-32; Spivey Dep. at 81, 83-84, 100.

In addition to the general behavior, Plaintiff endured several specific incidents during her employment at the Eye Center. The first, in fact, occurred during Plaintiff's interview, when Dr. Akstein told Plaintiff that he "would always like to have beautiful women at his front desk," although at that point the comment did not offend her. SMF ¶¶ 33-34; Spivey Dep. at 80.⁷ Another time, Dr. Akstein gave Plaintiff his cell phone number and asked her to come in during the weekend to work with him, telling her that he just wanted her to be there with him. SMF ¶¶ 35-36; Spivey Dep. at 91. When Plaintiff told Dr. Akstein that she could not do that because he was her employer, Dr. Akstein told Plaintiff that he did not want to have sex with her, but that he wanted to hold her and caress her because he knew that she was going through a hard time in her personal life. SMF ¶ 37; Spivey Dep. at 91-92. Plaintiff reported this incident to her manager. Spivey Dep. at 91-92. Further, while Plaintiff was in his office in January of 2003 or in late 2002, Dr. Akstein locked the door to his office. Plaintiff, however, stated in her deposition that she could have left the room if she tried. SMF ¶¶ 25-27; Spivey Dep. at 46; Compl. ¶ 12.⁸

7 This incident will be referred to herein as the "beautiful women comment."

8 The occasion in which Dr. Akstein gave Plaintiff his cell phone will be referred to herein as the "cell phone incident"; the occasion in which Dr. Akstein locked the door behind Plaintiff will be referred to herein as the "locked door incident." It appears that the locked door incident and the cell phone incident occurred at the same time. Spivey Dep. at 92-95.

Finally, Plaintiff alleges that, in January of 2003, she went to Dr. Akstein's office on one occasion to discuss a patient's chart with him, and he directed her to walk around the side of his desk. SMF ¶ 38; Spivey Dep. at 93-99. While he was sitting down, he put his arm around Plaintiff's back, under her shirt, and then on her back under her clothes. SMF ¶ 39; Spivey Dep. at 93-99. Dr. Akstein then touched the bottom of Plaintiff's breast, and Plaintiff pushed away from him and said, "what are you doing?" SMF ¶¶ 98-99. Plaintiff reported this incident to her manager. Spivey Dep. at 98-99.⁹

9 This incident is referred to herein as the "touching incident."

Despite these incidents, Plaintiff admitted in her deposition that she thought that the working environment at the Eye Center was physically safe and that she never feared that Dr. Akstein would physically injure her. SMF ¶ 28, 46; Spivey Dep. at 51, 58-59. Plaintiff also stated in her deposition that the Eye Center had a family atmosphere; that Dr. Akstein was affectionate and close to most of the employees, and that she reciprocated many of Dr. Akstein's hugs. SMF ¶¶ 42-43; Spivey Dep. at 43-45, 53, 115, 128.

In June of 2003, the Eye Center discovered a significant money shortage that occurred during the time that Plaintiff was responsible for postings. SMF ¶¶ 14-15; Spivey Dep. at 24-25. Although the circumstances surrounding the shortage and investigation are in dispute, Plaintiff admitted in her deposition that there was such a shortage, and that it did occur on her watch. Spivey Dep. at 24-25.

One of the issues that brought the June 2003 money shortage to the Eye Center's attention was, according to the Office Administrator, Linda Bunch, a number of complaints from patients that cash payments had not been posted to their accounts. SMF ¶ 16; Bunch Dep. at 91. In response to the complaints and the shortage, Bunch and her assistant performed an investigation, in which they reviewed records and patient accounts by auditing the posting batches and receipt books, keeping a log of patient complaints, and asking Plaintiff questions. SMF ¶¶ 17, 19; Bunch Dep. at 91, 93; Deposition of Haley Cheree Johnson ("Johnson Dep.") [68] at 39. Bunch also interviewed Plaintiff, who, according to Bunch, did not give direct answers to questions about the missing money, instead stating that she did not recall what happened to the missing money or what caused the shortages. SMF ¶¶ 17, 20; Bunch Dep. at 91-92, 136. In addition, the investigation revealed that deposit slips filled out by Plaintiff did not match the posting batch summary sheets, so that it appeared that Plaintiff deposited checks, but did not deposit cash. SMF ¶ 18; Bunch Dep. at 92.

Bunch determined from the investigation that Plaintiff had grossly mismanaged the money under her charge and had not complied with the policies and procedures related to her posting position. SMF ¶ 21; Bunch Dep. at 102-03. Accordingly, Bunch decided to terminate Plaintiff's employment; she received no input from Akstein in making this decision. SMF ¶¶ 22-23; Bunch Dep. at 90-91; Akstein Dep. at 165-67. Plaintiff admitted in her deposition that any business that discovered monetary shortages such as the one that the Eye Center discovered in June of 2003 was justified in terminating the responsible person, even if that person did not steal money. SMF ¶ 24; Spivey Dep. at 31. Plaintiff was terminated effective on or about July 11, 2003. SMF ¶ 2.

Plaintiff alleges that an audit conducted after her termination determined that there were, in fact, no missing monies. Plaintiff further alleges that Bunch was informed of this fact. PSMF ¶¶ 56-57 (citing Declaration of Johnnie Watkins ("Watkins Aff."), attached as Ex. 8 to Plaintiff's Response to Defendants' MSJ [Docket Entry 72 in Kimsey v. Akstein et al., 1:04-CV-1001-WSD-CCH] ¶¶ 10, 12). Plaintiff also alleges that, although she had at one time been doing a good job in her position, she was having difficulty in posting, had lagged behind, and had asked for help. PSMF ¶¶ 59-62 (citing Adams Dep. at 19; Bunch Dep. at 97-98, 100-01). Also according to Plaintiff, there were a number of general problems with the Eye Center's accounting procedures: other employees were behind in the task; many employees other than herself had access to money; there was more than one key to the money drawer; more than ten girls had access to the key and entered the drawer at various times; the Eye Center generally handled money poorly; organization and training of employees was generally poor; invoices were in disarray or could not be reconciled with cash, and there was a high turnover in employees keeping accounting records. PSMF ¶¶ 63, 66-68, 71, 75-79 (citing Watkins Aff. ¶¶ 11-14); Bunch Dep. at 99-100, 94-95; Adams Dep. at 49, 75). Plaintiff also alleges that the investigation conducted by Bunch did not utilize an outside accountant. PSMF ¶¶ 65, 73, 74 (citing Adams Dep. at 24; Akstein Dep. at 155-56, 160, 168; Bunch Dep. at 142-43).

On or about July 30, 2003, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that Dr. Akstein had sexually harassed her and that Defendants had terminated her on the basis of her sex. See SMF ¶ 47; Spivey Dep. at 108-09. It is undisputed that Plaintiff received a right-to-sue notice from the EEOC in response to her EEOC charge, and that she timely filed this action within ninety (90) days thereafter.

Because many of the Court's findings of fact are intertwined with its analysis of whether the parties have met their respective evidentiary burdens, the remaining relevant facts are set forth in the Discussion below.

III. DISCUSSION

A. EVIDENTIARY ISSUES

In their Motion to Strike [57], Defendants seek to strike certain supplementary portions of Plaintiff's Initial Disclosures, and to strike affidavits and testimony of several witnesses disclosed in the most recent supplement thereto. According to Defendants, Plaintiff's Initial Disclosures (Ex. 1 to Motion to Strike) purported to reveal all documents and data in her custody and control that may have been used to support her claims. See Memorandum in Support of Motion to Strike at 2. On March 18, 2005, however, over one month after discovery ended on February 10, 2005 (See Order Granting Discovery Extension in Part [39]), Plaintiff supplemented her Initial Disclosures to include eleven additional witnesses not included in her initial filing. See Exs. A and C to Revised Initial Disclosures Motion to Strike (Ex. 2 to Motion to Strike); Defendants' Memorandum in Support of Motion to Strike at 2-3. Plaintiff also included the declarations of nine of those witnesses. Defendants seek to exclude ten of the witnesses from testifying and to strike all related affidavits.¹⁰

10 Defendants concede that Johnnie Watkins had been previously identified in Plaintiff's response to Defendants' Interrogatories. See Defendants' Reply in Further Support of its Motion to Strike [76] at FN 1.

The Court already has found that Defendants' entire SMF is deemed admitted by Plaintiff because she has failed to respond adequately to each fact. See Preliminary Matters supra at 6-9. With respect to the use of these affidavits in Plaintiff's Brief, the Court notes that Plaintiff has filed to cite to the affidavits in her argument section and, as discussed supra, the Court will not consider Plaintiff's Statement of Facts in the preliminary section of her Brief. See Preliminary Matters supra at 6-9. Furthermore, and pertaining to the use of these materials in Plaintiff's PSMF, the Court concludes that most, if not all, of the testimony to which Defendants have objected is immaterial either to Plaintiff's claims or to Defendants' defenses, and therefore, the Court declines to discuss Defendants' objections. Accordingly, Defendants' Motion to Strike is DENIED WITHOUT PREJUDICE. The Motion may be refiled at a later time if this case proceeds to trial. Defendants are advised, however, that they now have notice of these potential witnesses and that this case is months from trial. Accordingly, while discovery is closed, if Plaintiff is willing to make these witnesses available for deposition or does not oppose a subpoena seeking their testimony, a court might allow them to be listed in the Pre-Trial Order and to be called at trial.

B. SUMMARY JUDGMENT STANDARD

Summary judgment is authorized when all "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. See Adickes v. S.H. Kress Co., 398 U.S. 144, 175, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir. 1984). The movant carries this burden by showing the court that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In making its determination, the court must view the evidence and all factual inferences in the light most favorable to the nonmoving party.

Once the moving party has adequately supported its motion, the nonmoving party must come forward with specific facts that demonstrate the existence of a genuine issue for trial.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed.2d 538 (1986). The nonmoving party is required "to go beyond the pleadings" and to present competent evidence designating "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324. Generally, "[t]he mere existence of a scintilla of evidence" supporting the nonmoving party's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

When considering motions for summary judgment, the court does not make decisions as to the merits of disputed factual issues.See Anderson, 477 U.S. at 249; Ryder Int'l Corp. v. First American Nat'l Bank, 943 F.2d 1521, 1523 (11th Cir. 1991). Rather, the court only determines whether there are genuine issues of material fact to be tried. Applicable substantive law identifies those facts that are material and those that are irrelevant. Anderson, 477 U.S. at 248. Disputed facts that do not resolve or affect the outcome of a suit will not properly preclude the entry of summary judgment. Id.

If a fact is found to be material, the court must also consider the genuineness of the alleged factual dispute. Id. An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Id. at 250. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 242. Moreover, for factual issues to be genuine, they must have a real basis in the record. Matsushita, 475 U.S. at 587. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Id. at 587 (quoting First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 20 L.Ed.2d 569 (1968)). Thus, the standard for summary judgment mirrors that for a directed verdict: "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."Anderson, 477 U.S. at 259.

C. STANDARDS OF PROOF IN TITLE VII CLAIMS

Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To prevail on a Title VII claim, a plaintiff must prove that the defendant acted with discriminatory intent.Hawkins v. Ceco Corp., 883 F.2d 977, 980-981 (11th Cir. 1989);Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 529 (11th Cir. 1983). Such discriminatory intent may be established either by direct evidence or by circumstantial evidence meeting the four-pronged test set out for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973); see also Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997); Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir. 1984).

Evidence that merely "suggests discrimination, leaving the trier of fact to infer discrimination based on the evidence" is, by definition, circumstantial. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990). When relying on circumstantial evidence, a plaintiff is first required to create an inference of discriminatory intent, and thus carries the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802; see also Jones v. Bessemer Carraway Medical Ctr., 137 F.3d 1306, 1310, reh'g denied and opinion superseded in part, 151 F.3d 1321 (11th Cir. 1998); Combs, 106 F.3d at 1527.

Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination. Jones, 137 F.3d at 1310-1311; Holifield, 115 F.3d at 1562 (citations omitted); see Burdine, 450 U.S. at 253-54. Once the plaintiff establishes a prima facie case, the defendant must "articulate some legitimate, nondiscriminatory reason" for the adverse employment action.McDonnell Douglas, 411 U.S. at 802; Jones, 137 F.3d at 1310. This burden is "exceedingly light" in comparison to the burden required if the plaintiff has presented direct evidence of discrimination. Smith v. Horner, 839 F.2d 1530, 1537 (11th Cir. 1988). If the defendant is able to carry this burden and explain its rationale, the plaintiff, in order to prevail, must then show that the proffered reason is merely a pretext for discrimination.See Burdine, 450 U.S. at 253-54; Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir. 1983).

A plaintiff is entitled to survive a defendant's motion for summary judgment if there is sufficient evidence to demonstrate the existence of a genuine issue of material fact regarding the truth of the employer's proffered reasons for its actions. Combs, 106 F.3d at 1529. A prima facie case along with sufficient evidence to reject the employer's explanation is all that is needed to permit a finding of intentional discrimination.Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109 (2000); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749 (1993); Combs, 106 F.3d at 1529.

This McDonnell Douglas-Burdine proof structure "was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S. Ct. 1478, 75 L. Ed.2d 403 (1983); see also Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir. 1987). The Eleventh Circuit has held that this framework of shifting burdens of proof is a valuable tool for analyzing evidence in cases involving alleged disparate treatment, but the framework is only a tool. Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir. 1984). The "ultimate question" is not whether a plaintiff has established a prima facie case or demonstrated pretext, but "whether the defendant intentionally discriminated against the plaintiff."Id., 738 F.2d at 1184 (quoting Aikens, 460 U.S. at 713-14);see also Jones, 137 F.3d at 1313. The plaintiff retains the ultimate burden of proving that the defendant is guilty of intentional discrimination. Burdine, 450 U.S. at 253.

D. PLAINTIFF'S TITLE VII CLAIMS

1. Dr. Akstein's Liability

Plaintiff has asserted claims under Title VII against both Dr. Akstein and the Eye Center, without specifying which Defendants she alleges are liable on which Counts. The Eleventh Circuit has held that "[t]he relief granted under Title VII is against the employer, not the individual employees whose actions would constitute a violation of the Act." Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991); accord Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996); Cross v. State of Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995). Therefore, Plaintiff may only assert a valid claim under Title VII against her actual employer, which, on the basis of the Complaint, appears to have been at all relevant times Defendant the Eye Center, not Defendant Dr. Akstein in his individual capacity. The Court finds, therefore, that Plaintiff's Title VII claims against Defendant Dr. Akstein in his individual capacity should be dismissed. Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment, insofar as it is based on Defendant Dr. Akstein's liability under Title VII, be GRANTED, and that Counts I through IV of Plaintiff's Complaint be DISMISSED as to Defendant Ricardo Akstein, M.D.

2. Plaintiff's Sexual Harassment Claims Against the Eye Center: Counts I and III

In Counts I and III of her Complaint, Plaintiff alleges that she was sexually harassed by Dr. Akstein. See Compl. Counts I, III.¹¹ A plaintiff may establish a violation of Title VII by proving that she was harassed on the basis of her sex and that such harassment affected a condition of her employment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S. Ct. 2399, 91 L.Ed.2d 49 (1986); Henson v. City of Dundee, 682 F.2d 897, 902-904 (11th Cir. 1982). As the United States Supreme Court has stated:

11 In her Complaint, Plaintiff actually states her claims as follows: "First and Second Causes of Action: Sexual Harassment and Gender Discrimination with Tangible Employment Action," see Compl. ¶¶ 17-27, and "Third and Fourth Causes of Action: Sexual Harassment and Gender Discrimination without Tangible Employment Action," see Compl. ¶¶ 28-34. The Court deduces that Plaintiff intends Count I to allege sexual harassment with tangible employment action (i.e. quid pro quo sexual harassment); Count II to allege gender discrimination with tangible employment action (i.e. discriminatory discharge); Count III to allege sexual harassment without tangible employment action (i.e. hostile work environment sexual harassment), and Count IV to allege gender discrimination without tangible employment action.

[T]he language of Title VII is not limited to "economic" or "tangible" discrimination. The phrase "terms, conditions, or privileges of employment" evinces a congressional intent to "`strike at the entire spectrum of disparate treatment of men and women'" in employment.

Meritor, 477 U.S. at 64 (citations omitted). Thus, Title VII grants employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. Id. at 65.

Sexual harassment may violate Title VII when the harassment: (1) involves the conditioning of concrete employment benefits on sexual favors ( i.e., what has been traditionally called quid pro quo sexual harassment), or (2) creates a hostile or offensive working environment, even if not affecting economic benefits. See Faragher v. City of Boca Raton, 524 U.S. 742, 118 S. Ct. 2275, 141 L. Ed.2d. 662 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 775, 118 S. Ct. 2257, 141 L. Ed.2d 633 (1998); Meritor, 477 U.S. at 62.

In this case, Plaintiff claims that Dr. Akstein sexually harassed her; specifically, both that an adverse employment action was taken against her for failure to succumb to his sexual advances (i.e. quid pro quo harassment — Count I of her Complaint), and that Dr. Akstein created a hostile work environment as a result of his harassment (Count III of her Complaint). Compl. Counts I, III. Although the terms "quid pro quo" and "hostile environment" continue to be used in some instances, their usefulness is diminishing since the Supreme Court's decisions in Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, and Faragher v. City of Boca Raton, 524 U.S. 775.

In these rulings, the Supreme Court erased the former distinction that the employer was vicariously liable for all quid pro quo harassment by its managers, while employer liability in a hostile environment claim required proof of actual or constructive knowledge. Rather, the Court held, the meaningful distinction was whether the harassment culminated in a tangible employment action by a supervisor. If so, the employer would be vicariously liable. If there was no adverse employment action but the harasser was a supervisor, typically the employer still could be held liable, but would have the opportunity to raise an affirmative defense by showing that: (a) the employer exercised reasonable care to prevent the harassment and took prompt corrective action once the harassment was reported, and (b) the employee unreasonably failed to take advantage of these safeguards. Ellerth, 524 U.S. at 765.¹² It is undisputed that Plaintiff was terminated; she argues that her termination culminated from Dr. Akstein's alleged harassment. Alternatively, she appears to allege that his harassment resulted in her constructive discharge.¹³ Compl. ¶ 25; Pl.'s Br. at 16.

12 See also Johnson v. Booker T. Washington Broadcasting Svc., Inc., d/b/a WENN Radio, 234 F.3d 501 (11th Cir. 2000) FN 7 (same analysis applies to sexual harassment claim regardless of whether Plaintiff terms it " quid pro quo" or "hostile environment").

13 While not an independent claim under Title VII, the Eleventh Circuit has "long recognized that constructive discharge can qualify as an adverse employment decision" for purposes of discrimination claims. Hipp v. Liberty National Life Ins. Co., 252 F.3d 1208, 1230 (11th Cir. 2001), cert. denied, 534 U.S. 1127 (2002).

In order to establish a prima facie case of sexual harassment, whether framed as a tangible employment action ( quid pro quo) claim or as a strictly hostile work environment claim, a plaintiff must show that: (1) she belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment was sufficiently severe or pervasive to alter the terms, conditions, or privileges of her employment, and (5) there is a basis for holding the employer liable for the harassment either directly or indirectly.Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982); see also Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995); Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557 (11th Cir. 1987).

The Eye Center does not dispute that Plaintiff has presented sufficient evidence to establish the first three elements of a prima facie case of sexual harassment, whether in the context of a quid pro quo claim or a hostile work environment claim.See Defendants' Memorandum in Support of their Motion for Summary Judgment ("Defs.' Br.") at 14. Further, it is undisputed that Plaintiff was terminated from her position, and thus, that a tangible employment action was taken against her. The Eye Center argues, however, that Plaintiff has failed to show that the incidents about which she complains were severe or pervasive enough to have altered a term or condition of her employment.¹⁴ Further, with respect to Plaintiff's quid pro quo claim in Count I, it argues that, even if the alleged harassment could be considered severe or pervasive, the Eye Center, as Plaintiff's employer, cannot be held liable for the actions of Dr. Akstein because there was no causal relationship between Plaintiff's termination and the alleged harassment.

14 Actually, Defendants argue that the alleged conduct was not "severe and pervasive." Defendants' Memorandum in Support of their Motion for Summary Judgment ("Defs.' Br.") at 14-15 (emphasis added). This, however, is a misstatement of the law, as a plaintiff need only show that the conduct was sufficiently "severe or pervasive to alter the conditions of [the plaintiff's] employment." Harris, 501 U.S. at 21 (emphasis added).

a. Severe or Pervasive Conduct

In order to establish a prima facie case of sexual harassment based on a hostile work environment, Plaintiff must show that her work environment was "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment."Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993). To determine whether a hostile environment is severe or pervasive enough to be actionable under Title VII, the "totality of the circumstances" must be considered; a court must consider not only the frequency of the incidents alleged but also the gravity of those incidents.Harris, 510 U.S. at 23; Vance v. Southern Bell Tel. Tel. Co., 863 F.2d 1503, 1511 (11th Cir. 1989). Other factors that are relevant are whether the offensive conduct is physically intimidating or humiliating, and whether it unreasonably interfered with the plaintiff's work performance. Harris, 510 U.S. at 23.

Plaintiff alleges generally: that Dr. Akstein frequently gave her "seductive looks"; that Dr. Akstein frequently told her that she was a "very pretty woman"; that, on six or more occasions, Dr. Akstein looked at her, licked his lips, and blew her a kiss, and that, occasionally, Dr. Akstein put his arm around her, told her she was beautiful, and kissed her on the side of her forehead. See Background Facts supra at 11-12.

Plaintiff also alleges the "major" incidents of harassment by Dr. Akstein: the beautiful women comment during Plaintiff's interview; the cell phone incident; the locked door incident,¹⁵ and the touching incident, in which Dr. Akstein briefly touched Plaintiff's breast.¹⁶ See Background Facts supra at 12.

15 The cell phone incident and the locked door incident appear to have occurred at the same time. See FN 8 supra.

16 Plaintiff argues in her Brief that she has produced "direct evidence of weekly incidents of unwanted touching, including incidents where Akstein touched her breasts, and two incidents where Defendant [Dr. Akstein] grabbed Mrs. Spivey's breast while uttering sexual comments as she struggled to get away from his grasp." Pl.'s Br. at 14. Plaintiff cites no evidence in support of this assertion, and moreover, while the evidence shows that Dr. Akstein frequently touched Plaintiff, there is only evidence of one occasion — the touching incident — in which he touched her breasts. Spivey Dep. at 97-99.

As an initial matter, the Court notes that whether much of the conduct at issue was unwelcome is questionable. For example, Plaintiff admitted that the beautiful women comment during her interview did not offend her, Spivey Dep. at 81-82, and that Plaintiff frequently reciprocated Dr. Akstein's hugs. Spivey Dep. at 45, 53, 115, 128. Thus, while it appears that Plaintiff protested to and rebuffed certain advances, such as those occurring in the cell phone incident and the touching incident, often she did not. Nonetheless, because Defendants have made no argument that any of the alleged conduct was welcome, see Defs.' Br. at 13-14, the Court must assume that each instance of alleged misconduct by Dr. Akstein was unwelcome, no matter how trivial it may appear. Further, Defendants have not made any argument that the alleged conduct was not based on Plaintiff's sex, id., and therefore, the Court must assume that even the most ambiguous events, such as Dr. Akstein's "seductive looks" toward Plaintiff, were not only unwelcome by Plaintiff, but were based on her sex.

Based on these concessions, and viewed in the light most favorable to Plaintiff, the Court finds evidence of several categories of allegedly harassing conduct: several "seductive looks"; frequent comments to Plaintiff that she was pretty or beautiful; six or more blown kisses; frequent hugs and actual kisses; the cell phone incident; the locked door incident; the beautiful women comment, and the touching incident. See Discussion supra at 31-33; Background Facts supra at 11-13.

Based on Defendants' concessions and on Plaintiff's complaints to her manager about, and rejection of, Dr. Akstein's advances on at least two occasions, there is no question that Plaintiff subjectively perceived much of this conduct as severe or pervasive. See Background Facts supra at 11-13. Applying the standard set forth in Harris, 510 U.S. 17, the Court finds that these allegations set forth a pattern of conduct that a reasonable jury could find severe or pervasive enough to have altered Plaintiff's work conditions.

It is true that some of the conduct of which Plaintiff complains, such as Dr. Akstein's telling her that she was pretty, would not, by itself, be sufficient to constitute a hostile work environment. "A man can compliment a woman's looks . . . on one or several occasions, by telling her that she is looking `very beautiful,' or words to that effect, without fear of being found guilty of sexual harassment for having done so. Words complimenting appearance may state the obvious, or they may be hopelessly hyperbolic. Not uncommonly such words show a flirtatious purpose, but flirtation is not sexual harassment."Gupta v. Florida Bd. of Regents, 212 F.3d 571, 584 (11th Cir. 2000) (citing Oncole v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). And, as discussed above, whether some of the conduct was unwelcome is questionable. See Discussion supra at 32-33. These incidents, however, must be viewed in their totality, examining the context in which they occurred. Vance, 863 F.2d at 1151. Further, based on Defendants' concessions, this Court must assume in examining that context that each act was sexually offensive to Plaintiff.See Discussion supra at 32-33.

Defendants contend that this conduct is no more severe or pervasive than that which the Eleventh Circuit found non-actionable in Gupta v. Bd. of Regents, 212 F.3d at 584. InGupta, the Eleventh Circuit found that several incidents, including excessive gazing; telephone calls to the plaintiff's home; frequent lunch invitations; two or three incidents of over-the-clothes touching, and various inappropriate comments, over a period of six months, were merely "bothersome and uncomfortable . . . and would trivialize true instances of sexual harassment." Id. at 586. The court concluded that most of the conduct was benign, and that, while it may have been sexual in nature, was not severe, threatening, or humiliating. In particular, the Court found that two of the touching incidents, one on the plaintiff's knee and one on the hem of her dress, while inappropriate, were not severe or pervasive enough to constitute sexual harassment, as "[e]ach incident was only momentary, and neither was coupled with any verbal suggestions or advances." Id. at 585.

Similarly, the Eleventh Circuit, in Mendoza v. Borden, found that the following conduct, occurring over eleven months, was not severe or pervasive enough to be actionable: an ambiguous statement by the alleged harasser that he was "getting fired up"; one occasion where the alleged harasser rubbed his hip against the plaintiff's while touching her shoulder and smiling; two instances where the alleged harasser made a sniffing sound while looking at the plaintiff's groin area and one sniff without looking at her groin, and constant following and staring by the alleged harasser. 195 F.3d 1238, 1247 (11th Cir. 1999).

Plaintiff alleges that Dr. Akstein's conduct is more akin to that in Johnson v. Booker T. Washington Broadcasting Servs., Inc. 234 F.3d 501 (11th Cir. 2000). In that case, the Eleventh Circuit found that fifteen incidents within a four-month period, which included unwanted massages, standing close enough for the harasser's body parts to touch the plaintiff's, and the harasser's pulling his pants tight to reveal his body parts, were sufficiently severe or pervasive for a jury to conclude that they fell within the definition of actionable harassment. Id.

Although it is a close call, the Court finds that the incidents at issue here are more severe than the incidents in Gupta andMendoza. Unlike the harassment in Gupta, the most severe of which included two instances of over-the-clothes touching, the alleged harassment in this case consisted of frequent touching, hugs and kisses, and one incident where Dr. Akstein touched Plaintiff's breast under her shirt. Additionally, in Mendoza, there was arguably no intentional touching and there were no explicit requests for sexual acts. Here, however, Dr. Akstein gave Plaintiff countless hugs and kisses, touched her breast, and made comments to Plaintiff about his desire to hold her. See Background Facts supra at 11-13; Discussion supra at 30-33.

On the other hand, this case is not quite like Johnson, as Plaintiff suggests. While in Johnson the employee endured fifteen incidents during a four-month window, 234 F.3d 501, Plaintiff was employed for almost two years with only one incident elevating to the severity of the touching incident. Nonetheless, the Court notes that, even if the touching incident itself were not severe or pervasive enough to alter the terms, conditions, or privileges of Plaintiff's employment, Plaintiff has alleged a pattern of less severe physical conduct, including frequent hugs and kisses, that, viewed in its entirety and in the light most favorable to Plaintiff, could be sufficiently severe or pervasive to satisfy the Harris ¹⁷ standard. Further, while the Eleventh Circuit in Gupta and in Mendoza questioned whether some of the behavior was ambiguous, this Court must assume, based on Defendants' concessions, that Dr. Akstein's conduct was both unwelcome to Plaintiff and was based on her sex. Moreover, the Court notes that Mendoza was an en banc review resulting in a split decision (7-4) and a very strong dissent. Given these circumstances, the facts in that case must be considered close to a line where a jury could reasonably have found actionable sexual harassment to have occurred. In this case, there are facts that elevate it above the "Mendoza line," and accordingly, the Court finds that Plaintiff has presented a genuine issue of material fact for a jury as to whether Dr. Akstein's conduct toward her rises to the level of harassment that is severe or pervasive enough to have altered a term, condition, or privilege of her employment at the Eye Center.

17 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), discussed supra at 30-31.

b. The Eye Center's Liability Under Count I: Tangible Employment Action

In order to establish the final element of a prima facie case of her " quid pro quo" claim,¹⁸ Plaintiff must present sufficient evidence that the Eye Center should be held liable for the actions of Dr. Akstein. "An employer is liable under Title VII if it (even unknowingly) permits a supervisor to take a tangible employment action against an employee because she refused to give in to his sexual overtures. That liability exists regardless of whether the employee took advantage of any employer-provided system for reporting harassment." Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1245 (11th Cir. 2004). In other words, when the supervisor's harassment culminates in an action such as a termination, liability is automatic. Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 762-63.

18 As discussed above, the distinction between a quid pro quo claim and a hostile work environment claim is all but eliminated since the Supreme Court's decisions in Faragher andEllerth. Here, Plaintiff has divided her two theories of liability into two separate counts, requiring the Court to treat them as separate counts. As the Eleventh Circuit has said, however, "[w]hen courts refer to the two types of conduct or fact patterns in cases, or theories of liability, as different types of `claims,' they are using the word `claim' as a shorthand — and potentially confusing — way of describing how the plaintiff contends that the employer is vicariously liable under Title VII. When we talk about tangible employment action and hostile environment, what we are or should be talking about are the two alternative ways a plaintiff may establish a basis for the employer's vicarious liability, which is the fifth factor of a Title VII sexual harassment claim." Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1246 (11th Cir. 2004).

When an individual seeks to proceed under such a theory, she must prove that the tangible employment action occurred " because of her sex." Walton v. Johnson Johnson Servs., Inc., 347 F.3d 1272, 1281 (11th Cir. 2003) (emphasis in original). Here, Plaintiff's adverse "tangible employment action" sexual harassment "claim" is based on her allegation that she was terminated because she failed to succumb to Dr. Akstein's advances.¹⁹ See, e.g., Pl.'s Br. at 17 ("Karan Spivey was considered to be doing a good job prior to the incident in which Akstein locked her in his office and forcibly grabbed her breast as she struggled to get free."); PSMF ¶¶ 54-55 ("When Akstein's harassment was repeatedly rebuffed by Plaintiff, his attitude toward her suddenly changed. He became very abrupt . . . Plaintiff was then accused of stealing monies from Akstein Eye Center and terminated.").

19 Alternatively, she argues that she was terminated in response to the surfacing of her allegations of Dr. Akstein's alleged misconduct. Pl.'s Br. at 16-17. Such a claim sounds in retaliation, not sexual harassment (and is discussed infra at 46-48).

When the harasser takes the adverse employment action against the plaintiff, "an inference arises that there is a causal link between the harasser's discriminatory animus and the employment decision. A Title VII plaintiff, therefore, may establish her entire case simply by showing that she was sexually harassed by a fellow employee, and that the harasser took a tangible employment action against her." Johnson, 234 F.3d at 509-10. Here, however, the evidence is undisputed that Bunch made the determination to terminate²⁰ Plaintiff, and that she received no input from Dr. Akstein in making that decision. See Background Facts supra at 15. Thus, Plaintiff has failed to show the final element of a prima facie case and Count I (her " quid pro quo" claim) should be dismissed.

20 Plaintiff has made ambiguous allegations in her Complaint and in her Brief that she was constructively discharged. The undisputed evidence, however, is that Plaintiff was terminated involuntarily on July 11, 2003. See Background Facts supra at 15. Based on these facts, the Court infers that this argument was asserted in error, and notes the possibility that Plaintiff's counsel confused this case with two related cases, Kimsey v. Akstein et al., 1:04-CV-1001-WSD-CCH, and Smith v. Akstein et al., 1:04-CV-1002-WSD-CCH, which do involve constructive discharge claims. Accordingly, the Court RECOMMENDS that Plaintiff's constructive discharge "claim" asserted in Count I of her Complaint be DISMISSED.

(1) Legitimate Non-Discriminatory Reason

Even if Plaintiff could present a prima facie case by showing that her supervisor and harasser terminated her, the Eye Center could still escape liability by showing that its decision to terminate Plaintiff was unrelated to her sex and was based on a legitimate non-discriminatory reason. See, e.g., Walton v. Johnson Johnson, 347 F.3d 1272, 1282-83 (11th Cir. 2003) (ending active employee status of employee who elected not to return to work upon expiration of short-term disability benefits, while a tangible employment action, did not render the employer automatically liable under Title VII because status change resulted from employee's own election to take long term benefits and there was no evidence that it occurred because of her sex).²¹

21 The Court notes that the Eleventh Circuit, in Johnson v. Booker T. Washington Broadcasting Servs., stated that it was "unwilling to read the McDonnell Douglas-Burdine framework into non-retaliation sexual harassment cases . . ." 234 F.3d at 511. In Johnson, the Court assumed for purposes of its analysis that the harassing supervisor made or influenced the alleged tangible adverse employment action. Id. at FN 15.
By contrast, in Walton, a more recent case than Johnson, the alleged supervisor had no influence in the decision to take the adverse employment action against the plaintiff. Walton, 347 F.3d at 1281-82 FN 7 ("Though [the harassing supervisor's] conduct may be imputed to [the employer] (subject to the affirmative defense recognized in Ellerth/Faragher), Walton has not shown that he played a role in the decision to terminate her."). The Court found that, because there was no indication that the company took the plaintiff's gender into account when it terminated her employment, then she was unable to establish a genuine issue of material fact as to the reason for her termination. In other words, the Eleventh Circuit, without expressly applying the McDonnell Douglas-Burdine framework, found that the plaintiff could not rebut the defendant's legitimate non-discriminatory reason for the termination of her employment.
In this case, the evidence is undisputed that Dr. Akstein had no input in the decision to terminate Plaintiff, see Background Facts supra at 15. Accordingly, the facts in Walton are more analogous to the facts of this case than are those in Johnson. As a result, the Court finds that the Eye Center's reason for terminating Plaintiff's employment is relevant to determining whether Dr. Akstein's harassment culminated in the termination of her employment.

Defendant has presented evidence that it received patient complaints about cash reconciliations, noticed accounting shortages, investigated, and terminated Plaintiff based on its determination that she mishandled monies. Specifically, after discovering a significant money shortage that occurred during the time Plaintiff was responsible for keeping track of the money, SMF ¶¶ 14-15; Spivey Dep. at 24-25; Bunch Dep. at 91; Background Facts supra at 14-15, the Office Administrator, Linda Bunch, and her assistant performed an investigation into the shortage, reviewing records and patient accounts and asking Plaintiff questions. Background Facts at 16-17; Bunch Dep. at 91. As part of the investigation, Bunch and her assistant audited the posting batches and all of the receipt books, they kept a log of all of the patients' complaints, and they interviewed Plaintiff, who gave indirect and inconclusive answers. Background Facts supra at 14-15. Bunch determined, based on her investigation, that Plaintiff had grossly mismanaged the money she was in charge of and had not complied with policies and procedures relating to her posting position. Background Facts supra at 14-15. As a result of these findings, Bunch, without Dr. Akstein's input, terminated Plaintiff's employment. Background Facts supra at 15.

When an employer offers an objective reason for its decision, a court need only test whether that "proffered reason is one that might motivate a reasonable employer." Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000). See also Alexander v. Fulton Co., Ga., 207 F.3d 1303, 1341 (11th Cir. 2000) ("[I]t is not the court's role to second-guess the wisdom of an employer's decisions as long as the decisions are not racially [or sexually] motivated."). Here, the Eye Center has offered an objective explanation for its decision to terminate Plaintiff; that, after investigating money shortages that occurred during Plaintiff's shifts and patient complaints, including interviewing Plaintiff herself, it determined that Plaintiff had performance problems and needed to be dismissed.See Background Facts supra at 14-15. Certainly a company's determination that one of its employees had mishandled monies is "one that might motivate a reasonable employer." Chapman, 229 F.3d at 1030.

(2) Pretext

Plaintiff argues that the proffered reason for her termination is pretextual because: (1) no outside investigation was conducted; (2) the Eye Center audit team found no monies missing, and (3) Plaintiff, prior to the touching incident, had been doing a satisfactory job. Pl.'s Br. at 16-17. Even if Plaintiff did not mishandle the money as alleged, such a finding, although it may be evidence that the Eye Center treated her unfairly, is not sufficient to show that the Eye Center's proffered reason for Plaintiff's termination is a pretext to cover up an unlawful motive. Courts are "not in the business of adjudging whether employment decisions are prudent or fair."Damon v. Fleming Supermarkets of Florida, Inc., 196 F.2d 1181, 1187 (11th Cir. 1984). Thus, the relevant inquiry is not whether Bunch's determination was correct, but whether it constitutes an "honest explanation" for terminating Plaintiff's employment.Chapman, 229 F.3d at 1030.

Here, the evidence shows that the Eye Center made a preliminary determination that money was missing, investigated it thoroughly, and made a determination based on that investigation that Plaintiff had been responsible for the mishandled monies. See Background Facts supra at 14-15. While Plaintiff's termination may have been based on the mistaken belief that she mishandled the money, such an allegation is insufficient to overcome the substantial evidence that no discrimination occurred. As the Eye Center points out in its Brief, it is undisputed that the posting of patient accounts showed money shortages, and that some of these errors occurred on Plaintiff's watch. Defs.' Br. at 21-22; Background Facts supra at 14-15.

Moreover, Plaintiff admitted in her deposition and in her PSMF that these shortages occurred on her watch, and has herself pointed out that she had been having trouble with her posting responsibilities and had requested help, and that an employer would be justified in terminating an employee found to have mishandled monies, even if the employee did not steal. Spivey Dep. at 24-25, 31; PSMF ¶¶ 59-63, 66-68, 71, 75-79 (citing Adams Dep. at 19, 49, 75; Bunch Dep. at 94-95, 97-101; Watkins Aff. ¶¶ 11-14); Background Facts supra at 14-15. Thus, even if Bunch, on behalf of the Eye Center, was incorrect in determining through her investigation, that Plaintiff had mismanaged monies and violated policies for posting payments, given Plaintiff's admissions, such error cannot establish pretext. See Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 FN 3 (11th Cir. 1999) ("under the `honest belief' rule, as long as the defendant honestly believed that the plaintiff acted improperly, summary judgment should be granted for the defendant"); Robinson v. Hoover Enterprises, LLC, 2004 WL 2792057 (N.D. Ga. October 20, 2004) (Thrash, J.) ("An employer's good faith, but incorrect, belief that an employee violated a work rule can constitute a non-discriminatory reason for that employee's suspension or termination"). Plaintiff has offered no evidence indicating that the Eye Center's belief that she had mishandled monies was not honestly held and, in fact, the evidence supports the conclusion that it was. See Robinson, 2004 WL 279205 (in case under the Americans with Disabilities Act ("ADA"), which is analytically similar to Title VII, company's mistaken determination that plaintiff engaged in financial misconduct not pretext).

Plaintiff may have been a productive employee at one time. Further, Bunch may have made a mistake as to whether Plaintiff violated the company's accounting policies. The only evidence before the Court, however, is that money shortages occurred on Plaintiff's watch and that the Eye Center held an honest belief that Plaintiff was responsible for those errors. Thus, a reasonable juror would have to conclude that the Eye Center's decision to terminate Plaintiff was motivated by the good faith enforcement of company policy. Regardless of whether the Eye Center was ultimately wrong about whether money was missing or whether Plaintiff's errors caused such shortages, an "employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." Robinson, 2004 WL 2792057, at * 9 (internal quotations and citations omitted).

While there is slight evidence of pretext in that the decision to terminate Plaintiff was made after her refusal to succumb to Dr. Akstein's advances during the touching incident, that incident occurred many months before her termination and her problems posting accounts and handling money occurred in the interim. Thus, the evidence of pretext is weak and cannot overcome the substantial evidence that her termination was not the result of discrimination. See Reeves, 530 U.S. at 18 (where evidence creates only a "weak issue of fact," compared to "abundant and uncontroverted independent evidence that no discrimination occurred," summary judgment is appropriate).

(3) Retaliation

Plaintiff implies in her Brief that she was terminated after, and because of, her reports of sexual harassment by Dr. Akstein.See, e.g., Pl.'s Br. at 16-17 ("Defendants have a history of such claims [of poor job performance] against Akstein's victims once his misconduct has surfaced"). Having found that Plaintiff has failed to support a claim of sexual harassment that culminated in her termination (her " quid pro quo" claim), out of an abundance of caution the Court will assume that Plaintiff has attempted, in the alternative, to frame her tangible employment action theory as one of retaliation for her complaint about Dr. Akstein following the touching incident.

To succeed on a retaliation claim a plaintiff must first establish a prima facie case by establishing that: (1) she engaged in a statutorily protected expression; (2) she received an adverse employment action, and (3) there was a causal link between the protected expression and the adverse action. See, e.g., Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998); Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1524 (11th Cir. 1991) (footnote omitted); Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985).

In retaliation cases, such as this one where there is not direct evidence of causation, a plaintiff may establish the inference of causal connectedness by showing that she suffered the adverse action shortly after she engaged in protected activity. Bass v. Board of County Comm., Orange County, Fla., 256 F.3d 1095, 1119 (11th Cir. 2001); Burngart v. BellSouth Telecom., Inc., 231 F.3d 791, 798 (11th Cir. 2000). The challenged decision must, however, follow almost immediately after the protected expression to support the logical inference that the two events were related. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511 (2001) ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close") (internal quotes omitted).

The Eleventh Circuit, in addition to many other appellate courts, has found that a gap of three months or more between the protected activity and the challenged personnel action is too long to support the inference that the two events were connected.See Higdon v. Jackson, 393 F.3d 1211 (11th Cir. 2004) (gap of three months between protected expression and adverse employment action not sufficient to establish temporal proximity in retaliation claim under ADA). See also Conner v. Schnuck Markets, Inc., 123 F.3d 1390, 1395 (10th Cir. 1997) (lapse of four months between protected activity and termination did not support inference of casual connection); Feltmann v. Sieben, 108 F.3d 970, 977 (8th Cir. 1997) (passage of six months between plaintiff's complaint and firing insufficient, without more, to establish causation); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (four-month gap between filing discrimination complaint and receipt of disciplinary letter did not give rise to inference of causal relation); cf. Wascura v. City of South Miami, 257 F.3d 1238, 1245 (11th Cir. 2001) (in retaliation case brought under Family and Medical Leave Act and ADA, plaintiff did not establish pretext by showing her firing came three-and-a-half months after employer learned of her son's disability; three-and-a-half months is too lengthy a period to suggest causal connection).

Here, almost six months elapsed between the time Plaintiff last complained of Dr. Akstein's behavior (after the touching incident, which occurred in January of 2003), and Plaintiff's discharge, which occurred in July of 2003. Background Facts supra at 15. Absent some other evidence of causation — and Plaintiff has offered none — as a matter of law in this Circuit no reasonable jury could connect her discharge with her complaints of Dr. Akstein's conduct following the touching incident. See Discussion supra at 45-46 (citing Reeves, 530 U.S. at 18).²² The Court RECOMMENDS, therefore, that Plaintiff's sexual harassment with tangible employment action (Count I of her Complaint) be DENIED and that this count be DISMISSED.

22 The Court finds that, even if Plaintiff were able to establish that her termination was causally connected to her complaints of sexual harassment, she cannot rebut the legitimate non-discriminatory reason for her termination, and her retaliation claim fails for this reason as well. See Discussion supra at 40-47.

c. The Eye Center's Liability Under Count III: Hostile Work Environment Without Tangible Employment Action

The Court has found that Plaintiff's "tangible employment action" or "quid pro quo" sexual harassment claim fails as a matter of law because Dr. Akstein was not involved in the adverse action taken against Plaintiff and because there is no fact question as to whether the articulated reason for Plaintiff's termination — a determination that she had mishandled monies — was a pretext for an unlawful motive. The Supreme Court, however, has made clear that sexual harassment may violate Title VII not only when the harassment culminates in a tangible adverse employment action, but also when it creates a hostile or offensive working environment, even if there is no tangible adverse employment action such as a demotion or discharge. See Faragher v. City of Boca Raton, 118 S. Ct. 2275, 141 L. Ed.2d. 662 (1998); Burlington Industries v. Ellerth, 118 S. Ct. 2257, 141 L. Ed.2d 633 (1998); Meritor Savings Bank v. Vinson, 477 U.S. at 62, 106 S. Ct. at 2403.See Discussion supra at 27.

Seeking to establish a claim under that theory, in Count III Plaintiff does not allege that any economic or tangible job consequences were conditioned upon her acquiescing to Dr. Akstein's sexual advances. Instead she has alleged a claim for sexual harassment based strictly on a hostile environment resulting from Dr. Akstein's behavior. See Compl. Count III.

To state such a claim, the plaintiff need only establish that: (1) she was a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on her sex; (4) the harassment was so severe or pervasive to alter the terms, conditions, or privileges of her employment, and (5) there is a basis for holding her employer liable for the harassment. Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982); see also Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995);Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557 (11th Cir. 1987).

The Court has found already that Plaintiff has established a genuine issue of material fact as to whether Dr. Akstein's conduct was sufficiently severe or pervasive to have altered the terms, conditions, or privileges of her employment. See Discussion supra at 30-37. The only remaining matter is whether there is a basis for holding the Eye Center liable for that conduct.

It is undisputed that Dr. Akstein was President and CEO of the Eye Center, and that he had supervisory authority over all employees. Compl. ¶ 5; Answer [5] ¶ 5; Amended Answer [6] ¶ 5; Akstein Dep. at 38, 47-48, 103, 237. Thus, the relevant issue is whether his knowledge of his own behavior can be attributed to the clinic. The Court finds, for the reasons set forth below, that there is a genuine issue of material fact for the jury to determine as to whether Dr. Akstein's conduct, within his role as President and CEO of the business carrying his name, can be attributed to the company.

In Faragher, the Supreme Court extensively discussed pre-existing caselaw related to vicarious liability for supervisor harassment, citing with approval its earlier decision in Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), where it was not an issue whether a corporation could be liable for the harassment by its president, because that individual "was indisputably within that class of an employer organization's officials who may be treated as the organization's proxy." Faragher, 524 U.S. at 789 (citingHarris, 510 U.S. at 19).

Although it has not ruled directly on this issue, the Eleventh Circuit has indicated in dicta that corporations may be held directly liable for sexual harassment by their proxies or alter egos. See Dees v. Johnson Controls World Servs., Inc., 169 F.3d 417, 422-23 (11th Cir. 1999). Further, this Court is aware of no authority in this Circuit or elsewhere holding that an individual who is indisputably within such a position as to be a company's alter ego does not invoke strict liability on the company for his harassing conduct. Moreover, at least two courts in this Circuit — including this District — have held that an employer could be liable for the harassing conduct of its owner.See Pospicil v. The Buying Office, Inc., 71 F. Supp.2d 1346 (N.D. Ga. 1999) (Forrester, J.) (issue of material fact as to whether employer could be held directly or vicariously liable; harasser was principal shareholder and, along with other management members, had received notice of complaints) (citingDees, 167 F.3d at 421); Tillery v. ATSI, Inc., 242 F. Supp.2d 1051 (N.D. Ala. 2003) (holding employer strictly liable for harassment by its owner).

Likewise, many other courts following the Supreme Court's reasoning in Faragher have found that liability automatically applies when the harassing supervisor is "indisputably within that class of an employer organization's officials who may be treated as the organization's proxy." Ackel v. Nat'l Communications, Inc., 339 F.3d 376, 384-85 (5th Cir. 2003) (quoting Faragher, 524 U.S. at 789); see also Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000); Passantino v. Johnson Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir. 2000);Mullinson-Montague v. Poernicki, 224 F.3d 1224 (10th Cir. 2000). See also United States Equal Employment Opportunity Commission v. Reeves, 84 Empl. Pract. Dec. 41,560, No. CV 0010515DTRZX, 2003 WL 22999369 (C.D Cal. Dec. 8, 2003); Velez Cortes v. Nieves Valle, 253 F. Supp.2d 206 (D.C.P.R. 2003).

The Court finds, therefore, that the Eye Center may be held strictly liable for Dr. Akstein's conduct if a jury concludes that he effectively controlled the Eye Center and that Plaintiff was subjected to sexual harassment that was so severe or pervasive as to have altered the terms, conditions, or privileges of her employment. Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment on Count III of Plaintiff's Complaint be DENIED.

3. Plaintiff's Gender Discrimination Claims: Counts II and IV

a. Count II: Discriminatory Discharge

(1) Prima Facie Case

Plaintiff does not contend that she has produced any direct evidence of any discriminatory intent on behalf of the Eye Center;²³ thus, her claim of discriminatory treatment on the basis of her gender rests purely on circumstantial evidence and must be analyzed under the McDonnell Douglas-Burdine framework. Under this framework, a plaintiff can generally establish a prima facie case of unlawful sex discrimination under Title VII by showing that: (1) she is a member of a protected class; (2) she was subjected to an adverse employment action by her employer; (3) she was qualified for the job in question, and (4) she was replaced by a male employee, or her employer treated similarly situated male employees more favorably than it treated her. See McDonnell Douglas, 411 U.S. at 802;see also Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997); Hawkins v. Ceco Corp., 883 F.2d 977, 982 (11th Cir. 1989).

23 Plaintiff's Brief is full of loose references to "direct" evidence. Plaintiff, however, has not argued that she has presented any direct evidence as the Eleventh Circuit has used that term in Title VII gender discrimination cases. See Discussion supra at 22-25.

Plaintiff has provided no evidence that she was replaced by a male employee in her position or that a similarly situated male employee was treated more favorably than she was. Instead, Plaintiff simply argues that Defendants' proffered reasons for her discharge are a pretext for unlawful discrimination. See Pl.'s Br. at 16-17. Plaintiff, however, must present evidence in relation to each of the elements of a prima facie case of discriminatory discharge in order to survive summary judgment. Viewing the evidence in the light most favorable to Plaintiff, the Court finds no indication that she was replaced by a male employee.

Alternatively, because Plaintiff's termination appears to have been a form of discipline for her allegedly mishandling monies, she could establish a prima facie case with evidence that similarly situated male employees engaged in similar misconduct, but were not disciplined as a result. When a plaintiff attempts to establish a claim of discrimination by pointing to more favorable treatment toward other employees, the plaintiff first must identify an employee outside of her protected class to which she is "similarly situated in all relevant respects."Holifield, 115 F.3d at 1562; see also Knight v. Baptist Hospital of Miami, 330 F.3d 1313, 1316 (11th Cir. 2003);Silvera v. Orange County School Bd., 244 F.3d 1253, 1259 (11th Cir. 2001). If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate when no other evidence of discrimination is present.Holifield, 115 F.3d at 1562. In addition, the plaintiff must point to evidence that the identified comparator committed the same or similar infractions as the plaintiff, but did not receive similar disciplinary treatment from the employer. Indeed, the plaintiff must show that the comparator's misconduct was "nearly identical" to the alleged misconduct of the plaintiff in order "to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges." Silvera, 244 F.3d at 1259 ( quoting Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999)).

Here, there is no evidence that the Eye Center employed any males as front desk assistants or in the posting position to which Plaintiff was promoted in 2002. Indeed, there is no evidence that the Eye Center employed any male other than Dr. Akstein, another male eye doctor, and the maintenance man. See Deposition of Brandy Martinez Smith ("Smith Dep."), Ex. 2 toKimsey v. Akstein et al., 1:04-CV-1001-WSD-CCH [71] at 240; Deposition of Danyle Prichard Kimsey ("Kimsey Dep."), Ex. 1 toKimsey v. Akstein et al., 1:04-CV-1001-WSD-CCH [70] at 290-91. Thus, Plaintiff has failed to come forward with any similarly situated male employee who was treated more favorably by the Eye Center than she was and, as a result, she has failed to establish a prima facie case of gender discrimination and her claim fails.

(2) Defendant's Legitimate Non-Discriminatory Reason and Plaintiff's Failure to Show Pretext

Even if Plaintiff had presented a prima facie case of gender discrimination, Defendants' Motion for Summary Judgment should be granted as to this claim because it has established a legitimate non-discriminatory reason for its action and Plaintiff has failed to present a factual issue as to whether that reason was a pretext for masking an unlawful discriminatory intent. See Discussion supra at 40-47.

Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment on Plaintiffs' claim for "gender discrimination with tangible employment action" be GRANTED and that this claim (Count II of her Complaint) be DISMISSED.

b. Count IV: Gender Discrimination Without Adverse Employment Action

In Count IV, Plaintiff alleges that she suffered gender discrimination "without adverse employment action." This is a legal impossibility, as a plaintiff must show that she was subjected to an adverse job action as part of a prima facie case of discrimination under the McDonnell Douglas-Burdine framework. McDonnell Douglas, 411 U.S. at 802; see also Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). As Plaintiff has failed to allege that she was subjected to an adverse employment action, then her gender discrimination "without adverse employment action" alleged in Count IV fails.

E. PUNITIVE DAMAGES

In her Complaint, Plaintiff seeks punitive damages as a remedy for Defendants' alleged wrongs. Defendants have moved for summary judgment on this "claim" with respect to her Title VII claims only. The Court concludes that, because it is recommending that Plaintiff's hostile work environment (without tangible employment action) claim (Count III) survive summary judgment, because of the existence of questions of fact as to intent, and because the severity and pervasiveness of certain acts must be resolved by a jury in order to determine whether Plaintiff has any viable claim on which damages may be awarded, Defendants' motion for summary judgment at this time that Plaintiff is not entitled to punitive damages under her Title VII claim is premature and is subject to material questions of fact properly before a jury.

F. PLAINTIFF'S STATE LAW CLAIMS

In addition to her federal claims, Plaintiff has asserted several state claims under Georgia law: intentional infliction of emotional distress, unsafe workplace, false imprisonment, and battery. Defendants have moved for summary judgment on Plaintiff's intentional infliction of emotional distress, unsafe workplace, and false imprisonment claims.

1. Intentional Infliction of Emotional Distress

Georgia courts have recognized the tort of intentional infliction of emotional distress by stating:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Yarbray v. Southern Bell Tel. Tel. Co., 261 Ga. 703, 409 S.E.2d 835, 837 (1991) (quoting The Restatement (Second) of Torts § 46(1) (1965)); see also Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga. App. 227, 335 S.E.2d 445 (1985). In order to sustain a cause of action, the defendant's actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff. Cornelius v. Auto Analyst, Inc., 222 Ga. App. 759, 476 S.E.2d 9, 11 (1996) ("The conduct must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.") (citation and internal quotation marks omitted); see also Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 369 S.E.2d 541 (1988); Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 772, 324 S.E.2d 593 (1984); Comment d § 46(1) of the Restatement (Second) of Torts ("Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim `Outrageous!'") (quoted in Yarbray, 261 Ga. at 706, 409 S.E.2d at 837).

To make out a prima facie case of intentional infliction of emotional distress under Georgia law, a plaintiff must prove each of the following elements: (1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga. App. 227, 230, 335 S.E.2d 445, 447-48 (1985); see also Gaston v. Southern Bell Tel. Tel. Co., 674 F. Supp. 347, 352 (N.D. Ga. 1987). The burden that a plaintiff must meet in order to prevail on this claim is a stringent one. Bridges, 176 Ga. App. at 229, 335 S.E.2d at 447.

Whether conduct is sufficiently outrageous and whether the resulting emotional distress is sufficiently severe to support a claim of intentional infliction of emotional distress are questions of law. Yarbray, 261 Ga. 703, 409 S.E.2d at 838;accord Clark v. Coats Clark, Inc., 990 F.2d 1217, 1229 (11th Cir. 1993). "If the evidence shows that reasonable persons might find the presence of extreme and outrageous conduct and resultingly severe emotional distress, the jury then must find the facts and make its own determination." Yarbray, 261 Ga., 703, 409 S.E.2d at 838.

Georgia courts recognize that the existence of an employer-employee relationship, where one party may exercise control over the other, may produce a character of outrageousness that otherwise might not exist. Bridges, 176 Ga. App. 227, 335 S.E.2d at 448.

The workplace is not a free zone in which the duty not to engage in willfully and wantonly causing emotional distress through the use of abusive or obscene language does not exist. Actually, by its very nature, it provides an environment more prone to such occurrences because it provides a captive victim who may fear reprisal for complaining, so that the injury is exacerbated by repetition, and it presents a hierarchy of structured relationships which cannot easily be avoided. The opportunity for commission of the tort is more frequently presented in the workplace. . . .

Coleman v. Housing Authority of Americus, 191 Ga. App. 166, 171, 381 S.E.2d 303, 306 (1989); see also Lightning v. Roadway Express, Inc., 60 F.3d 1551, 1558 (11th Cir. 1995). Even where an employment relationship exists, however, "major outrage in the language or conduct complained of is essential to the tort."Bridges, 176 Ga. App. 227, 335 S.E.2d at 448. Comments made within the context of one's employment may be horrifying or traumatizing, but are generally considered "a common vicissitude of ordinary life." Peoples v. Guthrie, 199 Ga. App. 119, 121, 404 S.E.2d 442 (1991).

The Georgia Court of Appeals addressed this standard of outrageousness in an employment context in Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 324 S.E.2d 593 (1984), in which it affirmed the trial court's grant of summary judgment in an action brought by a plaintiff against his former employer. The plaintiff had alleged that the defendant and its representatives had made approximately ten threats against his future employment and retirement benefits, as well as his life. The court held that these threats, considered individually or collectively, did not rise to the requisite level of outrageousness and egregiousness.Sossenko, 172 Ga. App. 771, 324 S.E.2d at 595. The court contrasted the defendant's conduct with those cases in which courts have found outrageous and egregious conduct, and found that the acts complained of did not rise to a sufficient level of outrageousness. See id. (citing American Finance Loan Corp. v. Coots, 105 Ga. App. 849, 125 S.E.2d 689 (1962) (defendant terrorized a frightened plaintiff at gunpoint in an attempt to collect a bill); Stephens v. Waits, 53 Ga. App. 44, 184 S.E. 781 (1936) (defendant physically intimidated frightened mourners as they attempted to bury a family member at a cemetery)).

In the instant action, Plaintiff bases her intentional infliction of emotional distress claim upon the unwanted attention, comments, and contact by Akstein. She also argues that she has suffered from mental and emotional distress from the events. See Pl.'s Br. at 19. The Court acknowledges that Plaintiff may have indeed suffered greatly as a result of the stress she was subjected to while working for the Eye Center. While Dr. Akstein's conduct may have been offensive and upsetting to Plaintiff, however, when measured against the facts in the relevant cases discussed above, the Court cannot find that the conduct was so outrageous that it could support a finding that Dr. Akstein is liable to Plaintiff for a claim of intentional infliction of emotional distress.

Thus, the Court concludes that Dr. Akstein's conduct does not rise to the requisite level of outrageousness and egregiousness to support a claim of intentional infliction of emotional distress under Georgia law. Furthermore, as Dr. Akstein is not liable to Plaintiff under this claim, there is no basis for holding Defendant the Eye Center liable on a theory of respondeat superior or any other theory. Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment be GRANTED with respect to both Defendants on Count V Plaintiff's Complaint, and that this claim be DISMISSED.

2. Failure to Maintain a Safe Working Environment

In Count VI of her Complaint, Plaintiff alleges that "Defendant Akstein Eye Center, P.C. owed a duty under Georgia law to the Plaintiff as well as to the rest of its employees to maintain a work environment free from verbal abuse, misconduct, gender discrimination and abus[ive] employment actions rooted in gender discrimination and sexual harassment."²⁴ Plaintiff alleges that the Eye Center breached that duty, and the Court infers that Plaintiff has based this alleged breach on the unwelcome sexual and physical contact from Dr. Akstein.

24 As with Plaintiffs' other claims, she does not specify whether this claim is alleged against only the Eye Center, or whether it is alleged against both the Eye Center and Dr. Akstein. As Plaintiff alleges in Paragraphs 39 and 40 of her Complaint, however, that any duty belonged to the Eye Center and that the Eye Center breached the applicable duty, the Court infers that Plaintiff intended to assert this claim against the Eye Center only.

As Defendants point out, the Court of Appeals of Georgia appears to have addressed this issue, and has found that, based on allegations amounting to emotional distress and harassment, an employer cannot be held liable for a breach of the duty to maintain a safe working environment.

The employer cannot reasonably be expected to be an absolute guarantor of a physically or emotionally "safe" workplace; his duty is only that of ordinary care. Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972). Moreover, the "safe workplace" cases cited by appellants Cline and Harper demonstrate that the applicable law, in imposing on the employer the duty to maintain a safe workplace, contemplates "safety" in the physical sense; that is, that the workplace be organized and maintained in such a manner as to minimize the likelihood of physical injury — not (alas!) that it be an utopian place where each employee is guaranteed optimal working conditions and kind, courteous, and supportive treatment at all times by all present. Walker v. Gen. Motors Corp., 152 Ga.App. 526, 263 S.E.2d 266 (1979). There is no allegation that appellants' physical safety was seriously threatened at any time during the course of the alleged harassment.

Cline v. McLeod, 180 Ga. App. 286, 293, 349 S.E.2d 232, 238 (1986). Plaintiff has not alleged a physical injury here, and so, she cannot state a claim under this theory.

In any event, as Plaintiff has not defended her unsafe work environment claim in her Brief, the Court finds that, even if she could state such a claim, she has abandoned it by failing to argue it. Accordingly, the Court RECOMMENDS that Count VI of Plaintiff's Complaint be DISMISSED.

3. False Imprisonment

In Count VII of her Complaint, Plaintiff alleges that she was falsely imprisoned. The tort of false imprisonment is covered under Section 51-7-20 of the Official Code of Georgia Annotated ("O.C.G.A.") and is defined as follows: "the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty." Under Georgia law, the essential elements of a false imprisonment claim are the detention and the unlawfulness thereof. Arbee v. Collins, 219 Ga. App. 63, 463 S.E.2d 922, 926 (Ga.App. 1995). False imprisonment is an intentional tort, not a tort of negligence, although a plaintiff need not show malice. Miller v. Grand Union Co., 250 Ga. App. 751, 552 S.E.2d 491, 494 (Ga.App. 2001);Smith v. Holeman, 212 Ga.App. 158, 441 S.E.2d 487, 490 (Ga.App. 1994).

It is essential to a false imprisonment claim, however, that the restraint be against the plaintiff's will. O.C.G.A. § 51-7-20. Mitchell v. Lowe's Home Centers, Inc., 234 Ga.App. 339, 506 S.E.2d 381, 384 (Ga.App. 1998).

Any restraint, however slight upon another's liberty to come and go as he pleases, constitutes an arrest. There is an illegal arrest and false imprisonment of another where he is detained for any length of time against his will. The restraint constituting a false imprisonment may arise out of words, acts, gestures or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.

Hackett v. Fulton Co. School Dist., 238 F. Supp.2d 1330, 1370 (quoting Burrow v. K-Mart Corp., 166 Ga.App. 284, 287, 304 S.E.2d 460, 463-464 (1983)). If the individual agrees of her own free choice to "surrender h[er] freedom of motion," whether by remaining in a room or accompanying the defendant voluntarily, then there is no actionable imprisonment. Mitchell, 506 S.E.2d at 384.

Here, Plaintiff bases her false imprisonment claim on the "locked door" incident discussed above. See Background Facts supra at 11-13; Pl.'s Br. at 17. During that incident, which occurred either in late 2002 or in early January of 2003, Dr. Akstein locked the door behind Plaintiff when she walked into a room. Plaintiff has admitted, however, that, during this incident, she was free to leave:

Q: Your Complaint said Dr. Akstein falsely imprisoned you. Do you feel like you were put in prison?

A: Well, when I walked in the room, he locked the door behind me, yes.

Q: Was there a key that he used to lock the door?

A: No.

Q: Was there a knob that you could unlock the door?

A: Yes.

Q: You could have unlocked the door, couldn't you?

A: Well, yes.

Q: You've got two hands with fingers on them?

A: Right.

Q: You could have turned the lock and got out of there?

A: I could have, yes.

Q: You were not held in there. The door was locked, but you could have got out, correct?

A: Right, yes.

Spivey Dep. at 46-48.²⁵

25 Plaintiff argues in her brief that she "has produced direct evidence that Akstein physically restrained her as he groped her, grabbed her breast and uttered humiliating sexual comments." Pl.'s Br. at 18. Plaintiff cites no evidence in support of this assertion. Further, her own deposition testimony does not support this statement, as her deposition testimony indicates that the locked door incident, in which she stated she felt free to leave, was a separate incident from the touching incident. Cf. Spivey Dep. at 45-47 with Spivey Dep. at 92-99.

While the Court has found that Dr. Akstein's conduct over the course of Plaintiff's employment, when viewed collectively, may create a jury question as to whether it was severe or pervasive enough to alter the terms, conditions, or privileges of Plaintiff's employment, based on Plaintiff's own admission that she was free to leave during the locked door incident, the Court finds that it cannot constitute false imprisonment under Georgia law.

Furthermore, as Dr. Akstein is not liable to Plaintiff under this claim, there is no basis for holding Defendant the Eye Center liable on a theory of respondeat superior or any other theory. Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment be GRANTED with respect to both Defendants on Count VII Plaintiff's Complaint, and that this claim be DISMISSED. IV. RECOMMENDATION

For all the above reasons, IT IS RECOMMENDED that Defendant's Motion for Summary Judgment [54] be GRANTED IN PART AND DENIED IN PART. The Court RECOMMENDS that Counts I, II, IV, V, VI, and VII be DISMISSED as to both Defendants, and that Count III be DISMISSED as to Defendant Dr. Akstein, but that Count III proceed as to Defendant the Eye Center. In addition, Defendants' Motion to Strike [57] is DENIED WITHOUT PREJUDICE. Defendants may re-file their Motion to Strike at a later time if this case proceeds to trial.

IT IS SO RECOMMENDED this 2nd day of December, 2005.