Opinion
NO. 1:01-CV-2992-JEC
June 6, 2003
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION
Attached is the report and recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1) and this Court's Local Rules LR 72 and LCrR 58.1, N.D.Ga. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the report and recommendation within ten (10) days of the receipt 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 filing 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 R2d 1093 (11th Cir. 1983), cert. denied 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).
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.
MAGISTRATE JUDGE'S FINAL REPORT, RECOMMENDATION AND ORDER
PART ONE
HISTORY OF THE CASE
This is a civil rights employment discrimination case filed by Margaret McDaniel, a female, who was employed for two weeks by the Merlin Corporation (hereinafter "Merlin" or "Defendant"), as a service writer in its Lilburn, Georgia office.McDaniel alleges that the Defendant employee (i.e. her supervisor) violated her civil rights by (1) harassing her because of her sex in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, et seq. (hereinafter "Title VII"); (2) retaliating against her for her protected activity in violation of Title VII; and (4) constructively discharging her in violation of Title VII (Count Four).
In her Complaint [Doc. 1], the Plaintiff does not specifically enumerate these charges as "Counts," but rather, lists them within the Complaint at ¶¶ 1 and 8, and ¶ 2 of the Prayer for Relief.
Presently pending before the undersigned is the Defendant's Motion for Summary Judgment, Brief in Support, Amended Statement of Undisputed Material Facts/ and exhibits (hereafter referred to as "DX-"), including the affidavit of Tim Williams (DX-A), excerpts from the deposition of Margaret McDaniel (DX-6), and various documentary exhibits (DX-1 — DX-5)[Docs. 16, 27].
Also before this Court are the plaintiff's Response, Brief in Support, Statement of Material Facts as to which there are Genuine Issues to be Tried, Response to the Defendant's Statement of Undisputed Material Facts, and exhibits (hereafter referred to as "PX-"), including excerpts from the deposition of Margaret McDaniel (PX-A) [Docs. 21, 28]. Additionally, the Defendant has filed a Reply to the Plaintiff's Brief [Doc. 29].
THE DEFENDANT'S MOTION FOR SUMMARY TUDGMENT
In its Motion for Summary Judgment (hereinafter "MSJ"), and for the purpose of making its motion, the Defendant assumes that, although the Plaintiff can present evidence that her supervisor subjected her to sexual harassment and retaliated against her, it contends that (1) the Plaintiff cannot show that the Defendant should be held liable for its employee's (her supervisor's) harassing conduct; (2) the Plaintiff has failed to make out a prima facie case of sex-based retaliation in violation of Title VII; (3) the Plaintiff cannot make out a prima facie case of constructive discharge in violation of Title VII; (4) the Defendant had legitimate, nondiscriminatory reasons for its alleged adverse actions against the Plaintiff; and (5) the Plaintiff cannot show that the Defendant's legitimate nondiscriminatory reasons for its actions were pretexts for sex discrimination. [Doc. 16].
PART TWO
THE ISSUES
1. Whether the Plaintiff can make out a prima facie case of hostile work environment sexual harassment in violation of Title VII.
2. Whether the Plaintiff can make out a prima facie case of retaliation in violation of Title VII.
3. Whether the Plaintiff can make out a prima facie case of constructive discharge in violation of Title VII.
4. Whether the Defendant can be held liable for its employee's alleged sexual harassment and alleged retaliation.PART THREE
SUMMARY OF THE FACTS
The Defendant has filed an Amended Statement of Undisputed Material Facts (SUF) [Doc. 27] in support of its Motion for Summary Judgment, and the Plaintiff has filed a Response to the Defendant's Statement of Undisputed Material Facts [Doc. 21], and a Statement of Undisputed Facts [Doc. 28] to which the Defendant has failed to Reply.In Part I, this Court sets out the Undisputed Facts as drawn from the Defendant's Amended Statement of Undisputed Facts [Doc. 27] to the extent that the Plaintiff has not disputed these facts. This Court must deem admitted those facts in the party's statement that are uncontroverted by the opposition. LR 56.1 6(2), NDGa.
In Part II, this Court sets out the Disputed Facts. To the extent possible, except for clarity, this Court will use the parties' own wording.
I. THE DEFENDANTS UNDISPUTED MATERIAL FACTS
1. Merlin Corporation maintains its principal place of business in Illinois; Merlin operates approximately ten muffler and brake repair and installation shops in Georgia and Illinois. DX-A at ¶ 2a.
2. At all times relevant to the instant suit, Merlin employed approximately 63 individuals. DX-A at ¶ 2b.
3. Merlin hired the Plaintiff as a service writer in its Lilburn, Georgia shop, effective August 2, 2000. DX-A at ¶ 2c; DX-6, pgs. 38, 42.
4. The Plaintiff worked for Merlin for two weeks between August 2, 2000 and August 16, 2000. DX-A at ¶ 2d; DX-6, pgs. 42, 87-88.
5. Merlin maintains an Employee Handbook applicable to all of its employees (including those at the Lilburn shop) which states in relevant part:
Merlin is committed to providing a work environment that is free of discrimination and unlawful harassment. Actions, word, jokes or comments based on an individual's sex, race/ ethnicity, age, religion, or any other legally protected characteristic will not be tolerated. As an example/ sexual harassment (both over and subtle) is a form of employee misconduct that is demeaning to another person, undermines the integrity of the employment relationship/ and is strictly prohibited.
Any employee who wants to report an incident of sexual or other unlawful harassment should promptly report the matter to his or her supervisor. If the supervisor is unavailable or the employee believes it would be inappropriate to contact that person, the employee should immediately contact the President or any other member of management. Employees can raise concerns and make reports without fear of reprisal. DX-A at ¶ 3; Ex. 4 to Doc. 17.
6. On August 2, 2000, the Plaintiff signed and dated an "Employee Acknowledgment Form" which states in relevant part that:
I understand that it is my responsibility to read and comply with the policies contained in this handbook . . .
DX-6, pgs. 40-42; DX. 4 to Doc. 17.
7. The Plaintiff testified that, during the hiring process, she saw the Employee Handbook and went "through a checklist of policies and making sure that I was aware of this stuff." DX-6, pgs. 40-44.
8. At all relevant times, Jeff Bradshaw was the supervisor at the Defendant's Lilburn shop and Robert Winters was employed there as a service technician. Roy Harvey began working at the Lilburn shop as a services technician on approximately August 15/ 2000. No other Merlin employees were assigned to the Lilburn shop during the plaintiff's employment tenure. DX-A at ¶ 2e; DX-6, pgs. 46-48.
9. At all relevant times, Glenn Spayde was the district manager covering the territory which included the Lilburn shop; manager Spayde was Bradshaw's direct supervisor. DX-A at ¶ 2f; DX-6, pgs. 39-40.
10. The Plaintiff testified that she was verbally warned by Bradshaw on at least one occasion before August 15, 2000 for being tardy to work and taking personal telephone calls at work. DX-6, pg. 51.
11. The Plaintiff admits that she was late for work on at least two occasions during her short tenure with Merlin, and that she engaged in personal telephone calls while on duty at work relating to her purchase of a car, obtaining car insurance and speaking with her sister. DX-6, pgs. 56-58.
12. On Wednesday, August 15, 2000, the Plaintiff's supervisor, Bradshaw, issued the Plaintiff a written warning letter regarding her unsatisfactory job performance. DX-6, pgs. 53-55 and Ex. 5 to Doc. 17.
13. The Plaintiff also knew that supervisor Jeff Bradshaw was scheduled to be off work on the morning of August 16, 2000. DX-6, pgs. 61-62, 73-74.
14. The day after she received the written warning letter on August 15, 2000, the Plaintiff was again late for work on August 16, 2000. DX-6, pgs. 61-62.
15. Bradshaw telephoned the Plaintiff after the Plaintiff arrived at work on August 16, 2000, and, according to her, he "reamed by [sic] (probably "my") butt and asked me where in the hell had I been and that I wasn't supposed to come in late to work and yelled at me." DX-6, pg. 74.
16. Bradshaw further told the Plaintiff that, after he made a bank deposit, he would be coming to the shop later that morning and was "going to handle this when I [Bradshaw] get in." DX-6, pgs. 74-75.
17. Immediately after her telephone conversation with Bradshaw on August 16, 2000, the Plaintiff telephoned district manager Glenn Spayde and complained that Bradshaw had made sexual comments to her and had touched her inappropriately and that her co-worker Robert Winters had also "made sexual or rude comments" to her. DX-6, pgs. 75-83.
18. Despite the fact that Spayde had been physically present at the Lilburn facility on one or two occasions after the alleged harassment occurred, the Plaintiff did not voice any complaints to Spayde, or to any other member of management, until immediately after her telephone conversation with Bradshaw on August 16, 2000. DX-6, pgs. 75-80, 110.
19. During her telephone conversations with Spayde on August 16, 2000, the Plaintiff testified that Spayde told her that:
(a) Merlin would take her complaint seriously;
(b) Merlin does not tolerate sexual harassment and Merlin would not allow any sex harassment to continue;
(c) Merlin would investigate her complaint; and
(d) the Plaintiff could temporarily report to work at another Merlin's shop located in Riverdale, Georgia if she wished.
DX-6, pgs. 80-83.
20. Immediately after the Plaintiff contacted District Manager Spayde on August 16, 2000, he reiterated that Merlin does not tolerate harassment, and he told her that he could travel to the Lilburn shop the next day to begin an investigation of her complaint. DX-6, pgs. 80-83.
21. After the Plaintiff lodged her complaint with District Manager Spayde on the morning of August 16, 2000, Bradshaw arrived at the Lilburn shop. Although the Plaintiff testified that Bradshaw tried to convince her that he was "just kidding," and that she should not go forward with her complaint, the Plaintiff admitted that Bradshaw never made any sexual comments to her or touched her in an inappropriate manner after her complaint to Spayde. DX-6, pgs. 84-89.
22. During the afternoon of August 16, 2000, Bradshaw gave the Plaintiff $131.00 as a cash advance on her salary, and she had requested a few days earlier so she could pay for car insurance on her new car. DX-6, pgs. 103-07.
23. The Plaintiff also left work early on August 16, 2000. DX-6, pgs. 85-87.
24. The Plaintiff never returned to work after August 16, 2000. DX-A at ¶ 2g; DX-6, pg. 94.
25. The Plaintiff was asked by defense counsel during her deposition why she had not returned to work after August 16, 2000. She testified as follows:
Q: [By counsel for Merlin] Why is it that you didn't return to work?
A: [By McDaniel] To Merlin's?
Q: Yes.
A: I did not feel comfortable.
Q: Any other reason?
A: No. I did not feel — I was not going to go to Merlin's and subject myself to taking a chance that this was going to happen again. I did not feel comfortable.
Q: Any other reason you didn't reason?
A: No.
DX-6, pg. 94.
26. On August 16, Spayde contacted the Defendant's Director of Operations Tim Williams at company headquarters in Illinois, and notified him of the Plaintiff's complaint. DX-A at ¶ 2h.
27. On August 16, after Spayde told Williams that Bradshaw had denied any misconduct or harassment to him, Williams told Spayde to tell Bradshaw that Merlin would investigate the plaintiff's complaint, and to warn Bradshaw that he was not to retaliate against the Plaintiff in any way. Spayde also told Williams that he advised Bradshaw of Williams' directive on August 16th. DX-A at ¶ 2i.
28. Immediately thereafter/ Williams personally investigated the plaintiff's complaint against Bradshaw. DX-A at ¶ 2j.
29. The following day, August 17th/ the Plaintiff did not return to work, and she testified in her deposition that she had employed an attorney to represent her in this case on that date, DX-6, pg. 90.
30. Williams telephonically contacted the Plaintiff as part of his investigation; and she testified in her deposition that she told him "exactly what had happened," and that she had an attorney. The Plaintiff "gave him [Williams] my statement like I was supposed to and that was it. Told him I couldn't discuss it any further." She left it with him that "I've got my lawyer and he'll be contacting you and if you need to know anything, you can contact him." The Plaintiff likewise told Spayde on or about August 17 that "I have a lawyer and I have hired me an attorney and I'm not to talk to you about this." DX-6, pgs. 89-90, 92-93.
31. After these discussion with Williams and Spay de about employing an attorney, the Plaintiff never again spoke with them or anyone else associated with Merlin. DX-6, pg. 93.
32. As part of his investigation, Williams conducted a telephone interview with Bradshaw on Friday, August 18, 2000. During this interview, Bradshaw denied that he had committed any misconduct or harassment against the Plaintiff, and he further offered as an explanation for the Plaintiff's complaint that he had issued the Plaintiff a warning letter the day before she lodged her complaint. DX-A at ¶ 21.
33. Williams traveled from Merlin's headquarters in Illinois to the Lilburn shop to conduct face-to-face interviews of all Lilburn shop employees. He conducted separate face-to-face interviews with Bradshaw and service technicians Robert Winters and Roy Harvey. Spayde was also present at each such interview, and, pursuant to Williams' instructions, took handwritten notes of the interviews. DX-A at ¶ 2m; DX-1.
34. Each employee witness interviewed by Williams provided Merlin (Williams) with a signed unsworn statement during the investigation outlining such employee's knowledge of all relevant facts. DX-A at ¶ 2p; DX-2 — DX-4.
35. Williams reiterated to the Lilburn employees the Merlin "no harassment" policy and policy requirements at the conclusion of the interviews, and he strongly warned them not to engage in any harassment or other conduct in the future that could be construed as harassment. DX-A at ¶ 2q.
36. The Plaintiff found another full-time job in September 2000, earning more money per hour than she had been paid at Merlin, although she worked fewer hours per week at her new job. DX-6, pgs. 22-23, 94.
37. On February 1, 2001, over five months after her last day at the Lilburn shop, the Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) alleging, among other things, that she had been subjected to sexual harassment by her supervisor and "constructively discharged" on August 16, 2000. Doc. 1 at ¶ 9; DX-5.
The Plaintiff improperly attempts to dispute this fact. Therefore, this Court will deem this fact admitted.
See FN 4.
See FN 4.
See FN 4.
II. PLAINTIFF'S UNDISPUTED FACTS
1. While the Plaintiff did sign an Employee Acknowledgment Form, agreeing that she would comply with the Defendant's policies, the Plaintiff contends that she does not remember ever actually receiving the Employee Handbook for her review. Plaintiff's Dep., pgs. 42-44.
2. The Plaintiff was uncomfortable with her supervisor's, Bradshaw's, rude remarks and physical contact, and asked him to stop on a number of occasions, but his conduct got worse. Plaintiff's Dep., pg. 95.
3. When the Plaintiff called Glenn Spayde to complain about the harassment, she told him that she was uncomfortable with the situation and wanted to go home. The only alternative Spayde offered to the Plaintiff was to let her work at the Defendant's Riverdale shop, 30 miles further away. She responded she could not work that far from her home. Plaintiff's Dep., pgs. 82-83.
4. The Plaintiff admits that immediately after lodging her complaint with Spayde, Bradshaw's sexual harassment stopped. However, Bradshaw compromised her work situation in other ways, cutting her work hours from 59 hours per week to 41 hours per week, and told her that now their work situation would get very complicated. Bradshaw also told the Plaintiff that she was not to walk out into the shop work area; that the other employees did not want to talk to her, did not want to see her, and did not want to hear her. Plaintiff's Dep., pgs. 84-85, 116.
5. The only reason the Plaintiff did not return to work after August 16, 2000 was because her only choice was to either endure the conditions imposed on her by Bradshaw and shorter hours, or be transferred to the Riverdale shop which she did not consider to be a workable alternative, as she told the Defendant. Plaintiff's Dep., pgs. 82-83.
6. The Plaintiff did not return to work after she left on August 16th, 2000. She also informed Spayde and Williams on or about August 16th or 17th that she was upset to be out of work. Plaintiff's Dep., pgs. 82-83, 91-92.
III. THE DISPUTED FACTS
1. The Defendant contends that Bradshaw, Winters and Harvey all denied that they were aware of any sexual harassment against the Plaintiff, and all three male employees told Williams that the Plaintiff herself had engaged in inappropriate behavior. For example, when the Plaintiff tried on her new work uniform, she asked them if it made her "ass" or "butt" look big. The employee witnesses further relayed instances in which the Plaintiff talked about family issues, finances and other personal matters at work. Williams Aff. ¶ 20 and Exs. 2-4 thereto.
The Plaintiff contends that she did not engage in unprofessional behavior at work. When she allegedly asked her coworkers how her uniform fit, two of the men responded her new uniform "made her ass look big." plaintiff's Dep., pgs. 70-72. She further contends that the employee witnesses were not reliable because Bradshaw wrote that the incident had occurred on August 14th, whereas Roy Harvey, who also attested to the incident, did not start working for the Defendant until after August 14th, 2000. Ex. 4 to the Williams Aff.
2. The Defendant contends that, after conducting the investigation, Williams concluded that the evidence was insufficient to corroborate the Plaintiff's allegations of sexual harassment. Williams relied on the following facts:
(a) Before she complained of sexual harassment, the Plaintiff had received verbal and written warnings from Bradshaw in the short time she had worked for Merlin Corporation;
(b) The Plaintiff did not report the alleged sexual harassment until the day after she received a written warning letter from Bradshaw and only moments after her August 16, 2000 conversation with Bradshaw regarding to her tardiness for work that day;
(c) the Plaintiff had signed the Acknowledgment for the Handbook containing Merlin's harassment complaint procedure; and, despite the fact that Spayde had physically been present in the Lilburn facility, she had never complained to him before August 16, 2000 about Bradshaw's alleged sexual harassment; and
(d) all other Lilburn employee witnesses denied knowledge of any sexual harassment or misconduct by any employee, and they all accused the Plaintiff of unprofessional behavior in the workplace. DX-A at ¶ 2r.
The Plaintiff contends that the written warning she received on August 15, 1999, included an oral warning about being late; which, at that time, had only occurred once, with the second time being the next day. She further contends that she only signed the written warning because " . . . he (Bradshaw) said he had to write that because Glenn had mentioned it to him. And I signed it, not trying to cause problems." In addition, the Plaintiff denied that the Defendant's allegation of her "leaving early" and personal telephone call issues were accurate. The Plaintiff further contends that she had received permission to leave work early, and that Bradshaw had given her permission to make personal phone calls about her car and car insurance, and the only other personal calls with which she was involved was speaking with her sister, and that she only used the telephone with permission. Plaintiff's Dep., pgs., 51-52, 55-58, 61-62.PART FOUR
CONCLUSIONS OF LAW
I. THE STANDARD FOR REVIEWPursuant to Fed.R.Civ.P. 56(c), this Court must grant summary judgment if "the 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."
As the moving party, the Defendant has the burden of showing the absence of a genuine issue as to any material fact. The Court must view any materials submitted in favor of the motion in the light most favorable to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. 5.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436 (11th Cir. 1996); Clark v. Coats Clark. Inc., 929 F.2d 604 (11th Cir. 1991).
The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Once the moving party has made this showing, the burden of going forward shifts to the non-moving party to show the presence of a disputed material fact. The non-moving party cannot create a disputed issue of fact by his/her pleadings, but rather must file a response which includes, or at least refers to, affidavits, declarations, depositions, or similar credible evidence showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997), cert. denied, Combs v. Meadowcraft Co., 522 U.S. 1045, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998);Isenbergh, 97 F.3d at 436; Hudson v. Southern Ductile Casting Corp., 849 F.2d 1372 (11th Cir.), reh. denied, 859 F.2d 928 (1988); Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir. 1983).
In making its determination as to whether there exists a genuine issue of material fact, this Court is not authorized to weigh the relative evidence and make credibility determinations. McKenzie v. Davenport-Harris Funeral Homes, 834 F.2d 930 (11th Cir. 1987);Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294 (11th Cir. 1983). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Anderson, 477 U.S. at 247-49); Combs, 106 F.3d at 1519; Isenbergh, 97 F.3d at 440-44); Spence v. Zimmerman, 873 F.2d 256, 257 (11th Cir. 1989). A genuine issue of material fact only exists if there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict in its favor.Anderson, 477 U.S. at 249-1: Thornton v. E.I. Du Font De Nemours and Co., 22 F.3d 284, 288 (11th Cir. 1994).
Where the legal issue as to which the facts in question pertain is one on which the movant would bear the ultimate burden of proof at trial, the movant must show . . .
affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial. In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party. If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the non-moving party, in response, come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.Fitzpatrick v. Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)).
Mere conclusory allegations and assertions are insufficient to create a disputed issue of material fact. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990); Mack v. W.R. Grace Co., 578 F. Supp. 626, 630 (N.D. Ga. 1983); Pelli v. Stone Savannah River Pulp and Paper Corp., 878 F. Supp. 1559, 1565 (S.D. Ga. 1995). For purposes of ruling on this summary judgment motion, this Court will consider all evidence in the light most favorable to the plaintiff, the non-moving party. Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525 (11th Cir. 1989). This Court will use these gauges to measure whether the Defendant is entitled to summary judgment as a matter of law.
II. THE DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON THE PLAINTIFF'S TITLE VII SEXUAL HARASSMENT CLAIM.
The Plaintiff contends that the Defendant discriminated against her on the basis of her sex by allowing her supervisor, Jeff Bradshaw, and co-worker Robert Winters to harass her. The ultimate question is whether the Defendant harassed the Plaintiff because she is a female. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407, 418 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To establish a successful claim of hostile environment harassment, the Plaintiff must show that (1) she belongs to a protected class; (2) she was subjected to unwelcome harassment by a co-worker and/or supervisor; (3) the harassment complained of was based upon sex; (4) the harassment complained of affected a "term, condition or privilege of employment"; and (5) a basis for employer liability (i.e. the employer knew or should have known of the conduct of the harasser and failed to take prompt remedial action). Tohnson v. Booker T. Washington Broad. Serv., 234 F.3d 501, 508 (11th Cir. 2000); Mendoza v. Borden, 195 F.3d 1238 (11th Cir. 1999) (en bane);Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982). Although the Defendant concedes for the purpose of its Motion for Summary Judgment that the Plaintiff is a member of a protected class and suffered unwelcome harassment because of her sex that might be considered severe and pervasive, it expressly contends that it cannot be held liable for such sexual harassment because the Plaintiff failed to take advantage of preventive or corrective opportunities provided by the Defendant.
Although the Defendant contends that it refutes that the harassment to which the Plaintiff was allegedly subjected meets the Eleventh Circuit standards of severity and pervasiveness to be in violation of the law in its Memorandum in Support of its Motion for Summary Judgment [Doc. 16, pg. 9], the Defendant fails to address this issue in depth in its Brief. Its failure to address the severity and pervasiveness of the allegedly harassing conduct implies that the Defendant concedes that, at least for disposing of its Morion for Summary Judgment, its employees subjected the Plaintiff to sexual harassment. Therefore, this Court will only determine whether the Defendant can be held vicariously liable for a supervisor's and co-worker's harassment of one of its employees.
A. The Plaintiff has not shown that the Defendant should be held liable for Probst's alleged harassing conduct.
Assuming that the Plaintiff established the first four elements of herprima facie case, she must prove that the employer is liable for the actions of the Plaintiff's co-worker. Although employers are liable for a supervisor's harassment, if the harassment did not lead to a tangible employment action, the employer can limit liability by proving an affirmative defense. Faragher v. City of Boca Raton, 524 U.S. 775, 807; 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). In order to establish an affirmative defense, the employer must show that: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any employer-provided preventative or corrective opportunities or otherwise avoid harm.Faragher, 524 LJ.S. at 807; Ellerth, 118 S.Ct. at 2270. Under the Faragher/Ellerth affirmative defense, "an employer need not act instantaneously, but must act in a reasonably prompt manner to respond to the employee's complaint," when given proper notice of her allegations. Frederick v. Sprint/United Management Co., 246 F.3d 1305, 1314 (11th Cir. 2001); Breda v. Wolf Camera Video, 222 F.3d 886, 889 (11th Cir. 2000). This remedial action must be reasonably likely to prevent the misconduct from recurring. Kilgore v. Thompson Brock Management. Inc., 93 F.3d 752, 754 (11th Cir. 1996).
1. The Defendant exercised reasonable care to prevent and promptly correct any alleged harassing behavior.
The Defendant contends, and the Plaintiff concedes, that it maintains an Employee Handbook stating in relevant part, that "sexual harassment (both overt and subtle) is a form of employee misconduct that is . . . strictly prohibited,' and "[a]ctions, words, jokes, or comments based on an individual's sex . . . will not be tolerated," (Undisputed Fact 5). The undisputed evidence shows that, on August 2, 2000, the Plaintiff signed the Handbook's "Employee Acknowledgment Form," which states in relevant part that it is her "responsibility to read and comply with the policies contained in this handbook," (Undisputed Fact 6). Therefore, the Plaintiff acknowledged that any employee who wants to report an incident of sexual harassment "should promptly report the matter to his or her supervisor," or, if the supervisor is not available, "immediately contact the President or any other member of management," (Undisputed Facts 5, 6).
However, the Plaintiff contends that the Defendant did not exercise reasonable care because it failed to demonstrate that it trained or informed its employees, including Bradshaw, about its sexual harassment policy, nor has the Defendant provided evidence that Bradshaw possessed an Employee Handbook. In addition, the Plaintiff testified that she never received a copy of the Employee Handbook containing the sexual harassment policy, nor did she have time to read the Handbook before signing the form documenting her Acknowledgment of the policy (Plaintiff's Fact 1; Plaintiff's Disputed Fact 2) Because the Plaintiff has the ability to "read and write," only an act of fraud preventing her from reading that which she acknowledged receiving would relieve her from the policy's obligation of promptly reporting sexual harassment. Jones v. USA Petroleum, 20 F. Supp.2d 1379 (S.D.Ga. 1998). Since the Plaintiff never claimed that the Defendant fraudulently failed to provide her an opportunity to read the policy, and only asserts that she does not remember seeing or receiving such a policy, she cannot escape her immediate obligation to report alleged sexual harassment. Therefore, the Defendant satisfied its publication requirements under part one of the Faragher/Ellerth defense.
2. The Plaintiff unreasonably failed to take advantage of the corrective opportunities the Defendant offered.
The undisputed evidence shows that the Plaintiff did not contact District Manager Glenn Spay de until August 16, 2000 to complain that Bradshaw had earlier made sexual comments to her and touched her inappropriately, while co-worker Robert Winters "made sexual or rudecomments" to her (Undisputed Fact'17). Indeed it is undisputed that she had previously failed to report such conduct to Spay de when he was physically present in the Lilburn facility on one or two prior occasions after the alleged harassment had started; nor did she report the conduct to any other member of management (Undisputed Fact 18). Thus, the evidence shows that the Plaintiff waited until after Bradshaw fussed at her for again coming in late to work on August 16, 2000, to report her complaints of sexual harassment to Spayde (Undisputed Facts 15, 18).
When the Defendant did learn of the alleged harassment, Spayde reiterated to the Plaintiff that Merlin does not tolerate harassment, and he offered to travel to the Lilburn shop and meet with the Plaintiff in person to investigate her complaint the next day (Undisputed Fact 20). The same day, Spayde contacted Director of Operations Tim Williams at company headquarters in Illinois to notify him of the Plaintiff's complaint (Undisputed Fact 26). After Spayde told Williams that Bradshaw denied any misconduct, Williams told Spayde to tell Bradshaw that Merlin would investigate the complaint; and he also told Spayde to warn Bradshaw that he was not to retaliate against the Plaintiff (Undisputed Fact 27).
As part of his personal investigation of the complaint, Williams conducted a telephone interview with Bradshaw on August 18, 2000, at which time Bradshaw denied committing any misconduct, and suggested that his August 15, 2000 warning letter to the Plaintiff regarding her job performance might be a possible motivation for her complaint (Undisputed Facts 12, 28, 32). Williams then immediately traveled from the Defendant's Illinois headquarters to the Lilburn shop to conduct face-to-face interviews with Bradshaw and service technicians Robert Winters and Roy Harvey, at which interviews Spayde was present and took notes (Undisputed Fact 33). Williams again reiterated the Merlin "no harassment" policy to the Lilburn shop employees and strongly warned them against engaging in any harassment or other conduct in the future that could be construed as harassing (Undisputed Fact 35). The Plaintiff even admitted that immediately after she lodged her complaint to Spayde, Bradshaw's alleged sexual harassment stopped (Plaintiff's Fact 4).
The Plaintiff also concedes that she waited four work days to report her alleged harassment to management, after asking both Bradshaw and Winters several times to stop their comments because they made her uncomfortable. Although the Plaintiff also contends that her complaints were not made in retaliation for Bradshaw's warning letter on August 15th, as evidenced by the fact that she also complained about Robert Winters' conduct towards her, Title VII does not require that an employer use the most serious remedy available to it to address a situation.See Hansen v. Ferry Technologies, 206 F. Supp.2d 1223, 1236 (S.D.Fla. 2002); Smith v. Beverly Health and Rehabilitation Services. Inc., 978 F. Supp. 1116, 1123 (N.D.Ga. 1997). Merely because the Plaintiff may feel that other measures may have been appropriate does not mean that the employer's remedial actions were inadequate. Portera v. Winn Dixie of Montgomery. Inc., 996 F. Supp. 1418, 1428 (M.D.Ala. 1998).
As noted above, the Defendant contends, and this Court agrees, that it took sufficient prompt remedial actions in response to the plaintiff's complaints of sexual harassment/which conduct the Plaintiff admits stopped after the complaint, because it conducted an investigation that was complete within three days of the Plaintiff's complaint. Although the Defendant's investigation did not yield sufficient evidence to corroborate the Plaintiff's allegations (Defendant's Disputed Fact 2), the Defendant began its remedial action within days of the Plaintiff's complaint and issued warnings to its employees about future harassing conduct. See Kilgore, 93 F.3d at 754; see also Dudley v. Metro-Dade County, 989 F. Supp. 1192, 1202 (S.D.Fla. 1997) (granting summary judgment where "it is undisputed that the sexual harassment stopped once [plaintiff] reported").
It should be noted that, on the advice of her attorney, the Plaintiff refused Williams' request to meet with him face-to-face during his investigation.
With respect to any claims concerning co-worker Robert Winters, the Plaintiff only testified that he made sexual or rude comments to her on occasion (Undisputed Fact 18; Plaintiff's Dep., pg. 109). His comments to her also stopped after the Plaintiff complained to Spay de, and Merlin commenced its investigation (Plaintiff's Dep., pgs. 109-10). For the same reason the Defendant should not be held liable for Bradshaw's alleged conduct, it should also not be held liable for the alleged conduct of Robert Winters. As such, the Defendant is entitled to summary judgment on the Plaintiff's Title VII sexual harassment hostile work environment claim.
III. THE DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON THE PLAINTIFF'S TITLE VII RETALIATION CLAIM.
The Plaintiff contends that the Defendant retaliated against her for engaging in protected activity (reporting alleged sexual harassment) and in violation of Title VII by making her work conditions intolerable, cutting her hours and ultimately terminating her. The ultimate question in the Plaintiff's retaliation claims is whether the Defendant discriminated against the Plaintiff by taking the foregoing actions because she engaged in protected activity. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407, 418 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The Plaintiff bears the initial burden of establishing a prima facie case of retaliation. Burdine, 450 U.S. at 254;Pace v. Southern Ry. Sys., 701 F.2d 1383 (11th Cir. 1983),cert. denied, 464 U.S. 1018 (1983), 104 S.Ct. 549, 78 L.Ed.2d 724 (1983). A plaintiff may make out a prima facie case of retaliation in several different ways, depending on the facts of the specific case. McDonnell Douglas, 411 U.S. at 802, n. 13; Jones v. Gerwens, 874 F.2d 1534, 1539 (11th Cir. 1989). As the Plaintiff has presented no direct evidence of an unlawful motive for the Defendant's action, she must make out a prima facie case using circumstantial evidence. McDonnell Douglas, 411 U.S. at 802.
Once the Plaintiff makes the necessary prima facie showing, the burden of going forward shifts to the Defendant to present evidence that it took its actions for a legitimate non-discriminatory reason.Young v. General Foods Corp., 840 F.2d 825 (11th Cir. 1988),cert. denied, 488 US. 1004, 109 S.Ct. 782, L. Ed.2d 774 (1989). The fact that a plaintiff makes out a prima facie case of retaliation does not preclude a grant of summary judgment for an employer. Wall v. Trust Co., 946 F.2d 805 (11th Cir. 1991);Brown v. American Honda Motor Co., 939 F.2d 946, 950 (11th Cir. 1991). Despite the presumption against using summary judgment to resolve the "elusive factual question" of discriminatory intent, Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 921 (11th Cir. 1993), a defendant may present such strong evidence of a non-discriminatory rationale that summary judgment is warranted. Brown, 939 F.2d at 946; Grigsby v. Reynolds Metals Co., 821 F.2d 590, 596 (11th Cir. 1987).
If the Defendant proffers credible, non-discriminatory reasons for its actions that are sufficiently probative, then the Plaintiff must come forward with specific evidence demonstrating that the reasons given by the Defendant are a pretext for retaliation. Brown, 939 F.2d at 946. Although the Eleventh Circuit has recently held that the evidence used by a Title VII plaintiff to establish the prima facie case may, standing alone, suffice to create a disputed issue of fact as to pretext,Hairston, 9 F.3d at 921, the Plaintiff still bears the burden of establishing pretext by presenting some probative evidence thereof to avoid summary judgment. Young, 840 F.2d at 828-831. Further, throughout the proceedings, the burden of persuasion always remains with the Plaintiff, who has the obligation of showing that the Plaintiff was a victim of retaliation. St. Mary's, 125 L.Ed.2d at 416, 419.
A. The Plaintiff has failed to make out a prima facie case of sex-based retaliation in violation of Tide VII.
Generally, when relying on circumstantial evidence, a plaintiff establishes a prima facie case of retaliation under Title VII by showing that (1) she participated in activity protected by Title VII; (2) simultaneously therewith or subsequent thereto, she suffered an adverse employment action; and (3) there is a causal connection between her participation in the protected activity and the defendant's adverse employment decision. Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir. 2001); Gupta, 212 F.3d at 587;Morgan v. City of Jasper, 959 F.2d 1542, 1547 (11th Cir. 1992);Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1521 (11th Cir. 1991). The McDonnell Douglas framework governing Title VII race and sex discrimination cases also governs the shifting burdens of proof in Title VII retaliation cases. Holifield, 115 F.3d at 1163. In this case, the Defendant does not dispute that the Plaintiff engaged in protected activity. However, the Defendant contends that the Plaintiff was not subjected to an adverse employment action.
An adverse employment action is "an ultimate employment decision, such as discharge or failure to hire, or other conduct that `alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee.'" Gupta, 212 F.3d at 587 (quotingRobinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3rd Cir. 1997)). Actions that fail to rise to the level of ultimate employment decisions may still be actionable, but they must meet "some threshold level of substantiality" to be cognizable. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998). Deciding whether events qualify as adverse employment actions is a fact-intensive inquiry to be conducted on a case by case basis using both subjective and objective standards. Gupta, 212 F.3d at 587(citingAnderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999) and Doe v. DeKalb County Sch. Dist., 145 F.3d 1441, 1448-1449 (11th Cir. 1998)). The Eleventh Circuit has held that, to meet the requisite level of substantiality, an adverse employment action must be a serious and material change in the terms, conditions or privileges of employment with a real and demonstrable impact, and not merely a de minimis inconvenience or alteration of those terms when viewed objectively.Davis v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001); see Doe, 145 F.3d at 1453; see also Hinch v. Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000).
1. The Plaintiff has failed to show that the threatened reduction in hours or demeaning comments constituted an adverse job action.
Here, the Plaintiff presented evidence that she experienced the following problems after complaining to management about being sexually harassed by both her supervisor and co-worker: (1) her supervisor, Bradshaw, told her that she was not to walk out into the shop area at all because the other employees did not want to talk to her, see her nor hear her (plaintiff's Fact 4); (2) Bradshaw also allegedly told the Plaintiff that their work situation would get very complicated if she did not tell Spayde that her complaints were really just a misunderstanding (Plaintiff's Fact 4; Plaintiff's Dep., pgs. 111-12); (3) Bradshaw allegedly cut her hours from 59 hours per week to 41 hours per week (plaintiff's Fact 4); (4) Bradshaw tried to convince the Plaintiff that his actions were a sign that he was "just kidding," and that she should not go forward with her complaint (Undisputed Fact 21); and (5) the Defendant officially terminated the Plaintiff only ten days after she complained of the harassment, on August 26, 2000 (PX-1).
The Plaintiff also asserts her constructive discharge claim based on her resignation from employment on August 16, 2000, as an adverse action in support of her retaliation claim. However, this Court will address the constructive discharge claim in a separate section with its own facts and legal analysis.
With respect to Bradshaw's comments, the evidence shows that the Plaintiff failed to return to work the day after that Bradshaw allegedly made the threat to cut her hours. Therefore, he never actually cut her hours; accordingly, the Plaintiff did not suffer that adverse employment action. As mentioned above, the Plaintiff did not allow the Defendant any time to resolve the issue as she never raised the alleged cutting of hours before. Furthermore, although she allegedly felt that her working conditions had changed due to Bradshaw's comments, she has pointed to no material disadvantage suffered as a result. Simply put, changes that cause no materially significant disadvantage to an employee are not actionable. Davis, 245 F.3d at 1239.
In addition, although the Plaintiff contends that she was terminated just ten days after complaining of harassment, the evidence to which she points indicates that she was not terminated until after she had abandoned her job (PX-1). After investigating the Plaintiff's claims of sexual harassment, Tim Williams issued a Confidential Report with a recommended action as stated, "Since there is no evidence to support [the plaintiff's] claim, and she has clearly been in violation of Merlin's attendance policy during her introductory period, my recommendation is that we terminate her with an effective date of August 26, 2000," (PX-1). Since the Plaintiff abandoned her job before the Defendant acted on Williams' recommendation, the Defendant did not terminate her. Therefore, it did not commit an adverse employment action.
The Plaintiff presents no evidence that any of these alleged adverse employment actions caused tangible harm to her salary, benefits, or job status. Since the Defendant's actions did not "impact the `terms, conditions, or privileges" of the Plaintiff's job in a demonstrable way, the Plaintiff cannot prove that they were adverse employment actions.Davis, 245 F.3d at 1239. As a result, this Court is compelled to conclude that the Plaintiff has failed to make out a prima facie case of retaliation with respect to any alleged adverse employment actions. Therefore, the Defendant is entitled to summary judgment on the Plaintiff's Title VII retaliation claim.
IV. THE DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON THE PLAINTIFF'S TITLE VII CONSTRUCTIVE DISCHARGE CLAIM.
The Defendant also contends that the Plaintiff cannot create a disputed issue of fact as to whether she was constructively discharged in retaliation for her engaging in protected activity. The "threshold for establishing constructive discharge . . . is quite high," higher than that for proving a hostile work environment. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001), cert. denied, 534 U.S. 1127, 122 S.Ct. 1064, 151 L.Ed.2d 968 (2002). Specifically, if an employer deliberately makes an employee's working conditions so intolerable that no reasonable employee could be expected to endure it (compelling the employee to involuntarily resign), the employer is "as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee." Doe, 145 F.3d at 1450.
In order to establish a constructive discharge claim using circumstantial evidence, the Plaintiff must prove: (1) that her working conditions were so intolerable that no reasonable person could be expected to endure them; (2) that the intolerable working conditions were a product of conduct that violated Title VII; (3) that the Defendant was responsible for the intolerable working conditions; and (4) that her involuntary resignation resulted therefrom. See Kilgore v. Thompson Brock Mgmt, 93 F.3d 752, 754 (11th Cir. 1996); Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993), cert. denied, 512 U.S. 1221, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1317 (11th Cir. 1989). The plaintiff must allege that the employer intentionally rendered her working conditions so difficult, unpleasant or intolerable that she was compelled to involuntarily quit because a reasonable person in her shoes would have felt compelled to resign. See Poole v. Country Club, Inc., 129 F.3d 551, 553 (11th Cir.1997): Buckley v. Hospital Corp. of America. Inc., 758 F.2d 1525, 1530 (11th Cir. 1985). Nevertheless, the Plaintiff has an obligation not to assume the worst or to jump to conclusions too fast. See Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987). Therefore, courts generally require the aggrieved employee to give the employer sufficient time to remedy the allegedly intolerable situation before leaving her job. See Id.
Here the Plaintiff presented evidence of the same alleged intolerable working conditions that she presented in section IIIA, above, such as Bradshaw's comments to her about not wanting to talk to her, see her or hear her, as well as his telling her that their work situation would get complicated (Undisputed Fact 21; Plaintiff's Fact 3). The Plaintiff contends that the only remedy thereto offered by the Defendant was to permit the Plaintiff to transfer to the Defendant's Riverdale shop until the situation cleared up (Plaintiff's Fact 3). However, the Plaintiff contends that the Defendant's Riverdale shop was too far away from her home and would constitute an impossible commute, telling Spayde, "This isn't fair to me because you know I haven't done nothing wrong and now I'm going to be the one without work," (Plaintiff's Fact 6; Plaintiff's Dep., pg. 83). During her telephone interview with Tim Williams on August 16, 2000, the Plaintiff said, "I don't see how I could be the one who's perfectly innocent and now I'm the one without work," and "[I]t bothers me that I've got a family to take care of and here I am without work," (Plaintiff's Fact 6; Plaintiff's Dep., pg. 92). Neither Williams nor Spay de offered her a different alternative. Indeed, the record is devoid of any evidence that the Defendant had another shop closer to the Plaintiff's home. See Maddow v. Proctor Gamble Co., Inc., 107 F.3d 846, 852-53 (11th Cir. 1997) (holding a requirement of transfer is adverse, and finding a constructive discharge where defendant gave the plaintiff option of transfer as only option to remain employed even though plaintiff stated she did not want to transfer).
Viewing the evidence in the light most favorable to the Plaintiff, this Court is compelled to conclude that the Plaintiff's evidence does not show that the Defendant's foregoing conduct was severe or pervasive enough to support a finding of constructive discharge. Simply put, harsh treatment in the workplace is not shielded by Title VII. McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986); Heliums v. Webster Indus., Inc., 97 F. Supp.2d 1287, 1297 (M.D. Ala. 2000) ("hurt feelings are insufficient as proof of constructive discharge"). The Plaintiff has only provided her suspicions that she feared that the alleged harassment she suffered could happen again (Undisputed Fact 25). Therefore, since the Plaintiff failed to prove that her workplace was "permeated with discriminatory intimidation, ridicule and insult," she is not entitled to Title VII relief. Harris, 510 U.S. at 21, 114 S.Ct. at 370. Although the alleged statements from Bradshaw may have upset the Plaintiff, she has not proven that Bradshaw's conduct that allegedly forced her resignation also violated Title VII.Hipp, 252 F.3d at 1231; Cross v. Southwest Recreational Indus., Inc., 17 F. Supp.2d 1362, 376 (N.D.Ga. 1998) (cursing and yelling at the plaintiff and then demoting her insufficient to maintain a claim of constructive discharge).
As mentioned above, the Plaintiff stated, as her only reason for leaving work and not returning, that she did not want to take the chance that something (harassment) might happen again (Undisputed Fact 25). However, courts do not consider the Plaintiff's subjective feelings/ but rather, rely on a reasonable person's standard; because the employer's response eliminated the conduct about which the Plaintiff complained, it was reasonable. See Williams v. Russell Corp., 218 F. Supp.2d 1283, 1299-1300 (M.D.Ala. 2002) (determining that difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign where the plaintiff complains about an incident and experiences no other such problems with the alleged perpetrator).
Furthermore, the Eleventh Circuit has determined that, while asking an employee to transfer may be considered an adverse action as argued by the Plaintiff in reliance on Maddow, it would only be considered as such if such transfer would be objectively equivalent, at least to some degree, as a demotion since the adversity must be material, not a de minimus inconvenience. See Doe, 145 F.3d at 1450, 1453. Since the transfer would be temporary and would be to the next closest store, it would be just a mere inconvenience for a short period of rime. As such, the Plaintiff assumed the worst and left the Defendant's employment without giving the Defendant sufficient time to finish its investigation and remedy the alleged intolerable conditions.See Garner, 807 F.2d at 1539. Consequently, the Defendant is entitled to summary judgment on the Plaintiff's Title VII constructive discharge claim.
PART FIVE
CONCLUSION
For the aforementioned reasons,IT IS THEREFORE RECOMMENDED that the Defendant's Motion for Summary Judgment [Doc. 16] be GRANTED as to the Plaintiff's Title VII sexual harassment, sex-based retaliation and constructive discharge claims.
ORDER
Should the District Judge's disposition of the Defendants' Motion for Summary Judgment leave any issues to be tried before the undersigned, IT IS FURTHER ORDERED that within thirty (30) days of the District Judge's Order, the parries file their Consolidated Pretrial Order as to the remaining claims.
The Clerk of Court is DIRECTED to terminate referral of this action to the undersigned magistrate judge.
IT IS SO RECOMMENDED AND ORDERED.