Opinion
Civil Action File No. 1:04-CV-0649-MHS-GGB.
December 7, 2005
NON-FINAL REPORT AND RECOMMENDATION
Plaintiff, Gloria Walker, a black female, brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and under Georgia law against Henry County, and her former supervisor, Ralph McCanless. She alleges sexual harassment/hostile work environment, sex discrimination, race discrimination, and retaliation, in violation of Title VII against Henry County. She also alleges negligent retention under Georgia law against Henry County, and intentional infliction of emotional distress and invasion of privacy under Georgia law against McCanless.
Pending before the court are Henry County's and McCanless' Motions for Summary Judgment. For the reasons discussed below, the undersigned RECOMMENDS that Henry County's motion [Doc. 43] be GRANTED in part and DENIED in part and that McCanless' motion [Doc. 41] be GRANTED.
I. FACTS
In 1999, Henry County hired plaintiff as a clerk. In the fall of 2000, plaintiff was promoted to the position of Senior Buyer in the County's Purchasing Department. Plaintiff was supervised by McCanless, who was the Purchasing Department Director.From the beginning of her employment with the County, plaintiff believed that McCanless was overly friendly with her. While she was a clerk, McCanless asked plaintiff to go to lunch with him alone a couple of times per month. Plaintiff declined his invitations, to which McCanless had no reaction. (Pla. Dep. at 55-56). On one occasion, early in her employment, plaintiff left work after learning that her apartment was on fire. When she returned, McCanless asked if everything was all right and told plaintiff that she could come to live with him if she needed a place to stay. (Id. at 57). On another occasion when plaintiff was a clerk, while she and McCanless were at a conference, McCanless asked plaintiff to accompany him to a bar to have a couple of drinks rather than return to work. Plaintiff declined, and McCanless commented that she was "stuffy." (Id. at 57-58). During this same period, McCanless asked plaintiff personal questions, such as what she did over the weekend and if she had a date. (Id. at 59).
On several occasions, McCanless talked to plaintiff about sexual matters: On two occasions in late 1999, McCanless asked plaintiff whether she watched the television show "Sex and the City"; when plaintiff responded that she did not, McCanless told her that she should watch it. (Pla. Dep. at 64). On another occasion, when plaintiff entered McCanless' office, he tried to engage her in a conversation about an article in the paper about police officers having sex in a crime scene unit. He also tried to talk to her about people in the Sheriff's Department who liked to "wife swap." In early 2002, McCanless told his female staff members about a sexual encounter by a former male colleague and described hearing the noises the man made in a hotel room while having sex. (Id. at 58, 62; Doc. 43, Ex. 1 ¶ 1). On another occasion, McCanless came back from lunch laughing and told his staff that he and another employee had seen the dress of a woman, who was wearing no underwear, fly up in the air. (Pla. Dep. at 65; Doc. 43, Ex. 1 ¶ 2).
Sometime in May 2002, plaintiff went into McCanless' office to ask him for aspirin for her headache. When he asked her why she had a headache at 8:00 in the morning, she told him that she was "on my cycle." McCanless then said, "just come in my office and close the door and take your clothes off and bend over, and I'll fix your headache." (Id. at 65-66). Plaintiff acknowledged that the remark was made "jokingly." (Doc. 43, Ex. 1 ¶ 4).
On one occasion in 2002 plaintiff overheard McCanless tell a coworker, who was talking about going on a diet, that she should not lose weight because "she might lose her tits and he liked his women with an ass." (Pla. Dep. at 67).
McCanless frequently used the "f-word." On May 30, 2002, he stated that if anyone was not happy in the Purchasing Department they should "get the f____ out." Around this same time, McCanless remarked to plaintiff that, if she wanted a raise, she should start "kissing up" to him. (Doc. 43, Ex. 1 ¶¶ 5-6).
On three occasions, the last of which was in the spring of 2002, McCanless asked plaintiff to sew a button onto his shirt. (Pla. Dep. at 70-71). Plaintiff reluctantly did so. On these occasions, McCanless took off his shirt and sat in his undershirt in plaintiff's presence while she sewed on the button. (Id.).
Plaintiff received a copy of the County's personnel policies at the time she was hired on July 21, 1999. These policies set forth the County's sexual harassment policies and reporting procedures. (Doc. 43, Ex. 3). The policy required employees to report sexual harassment to their department head. The policy also allowed employees to bypass the department head and report the harassment privately to the County Administrator or to the County Attorney. (Id. at 12).
On May 24, 2002, McCanless called plaintiff into his office and provided her with a Disciplinary Action Memo. The Memo advised plaintiff that she was being placed on three months' probation for falsifying purchase orders on multiple occasions. (Pla. Dep., Ex. 12). Plaintiff believed that the discipline was not justified. (Pla. Dep. at 121; Doc. 43, Ex. 7). After leaving McCanless' office, plaintiff immediately went to the Human Resources Office to dispute the discipline and to find out the procedures for filing a grievance. Rudene Oliver, the Human Resources Director, suggested that plaintiff meet with the County Manager, Jim Risher, to discuss the matter. (Pla. Dep. at 122).
The next Monday, plaintiff met with Risher and Oliver. Plaintiff told them that she believed the Disciplinary Action Memo to be unjustified and in retaliation for her application for another position outside the Purchasing Department. (Pla. Dep. at 122). Risher asked plaintiff why she had applied for numerous transfers. Plaintiff explained that she had not wanted to bring this up, but since Risher had asked, she "wanted out of the department because of McCanless' vulgar language and inappropriate behavior and comments to [her]." (Pla. Dep. at 122; Doc. 43, Ex. 7). Plaintiff went on to describe some of McCanless' inappropriate behavior. This was the first time plaintiff had reported McCanless' behavior to the Human Resources Department, or to anyone else in authority. Risher told Oliver to cancel the disciplinary action against plaintiff and to give McCanless a verbal warning. He also told plaintiff to begin keeping a journal for future reference. (Id.).
On June 4, 2002, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that the County had discriminated against her because of her race and sex by sexually harassing her, denying her opportunities and transfers, and disciplining her on May 24, 2002. On June 6, 2002, Oliver offered plaintiff the opportunity to transfer to the position of right-of-way technician. Plaintiff declined this transfer because it required working outdoors and was not comparable to her job in the Purchasing Department. (Pla. Dep. at 128, 155). On June 20, 2002, the County placed both plaintiff and McCanless on administrative leave with pay. (Doc. 43, Ex. 5).
In August 2002, the County notified plaintiff that she should report to work in the County's Finance Department on August 13, 2002. Upon her arrival in the Finance Department on that date, plaintiff was informed that her office would be a storage room and that it was not yet ready for occupancy. When plaintiff inquired as to her job functions, a manager in the department told her that a position was not available and that there was nothing for her to do. (Pla. Dep. at 181-83). Plaintiff then left. (Id. at 183).
On August 30, 2002, Risher mailed a letter to plaintiff instructing her to report to the Human Resources Department on September 4, 2002, for assignment to a position in the Finance Department. (Doc. 43, Ex. 23). The new position was that of Courts Accounting Clerk and, according to the job description, required basic bookkeeping or accounting experience. (Doc. 43, Ex. 24). On September 3, 2002, plaintiff's attorney sent a letter to the County Attorney reiterating a telephone message she had left on August 30, 2002. She stated that plaintiff was not qualified for, or interested in, the position of Courts Accounting Clerk. She pointed out that plaintiff did not possess bookkeeping or accounting experience. (Id.). Plaintiff did not want to be put in a position for which she was unqualified. (Doc. 43, Ex. 13 at 23).
On September 10, 2002, Risher notified plaintiff by letter that she was being terminated for job abandonment. (Doc. 43, Ex. 20). Plaintiff filed a second EEOC complaint on September 11, 2002 alleging sex and race discrimination and retaliation in connection with her suspension and termination. (Doc. 50, Ex. 11).
Plaintiff also appealed her termination to the Henry County Board of Commissioners, which heard plaintiff's appeal on October 14, 2004. (Doc. 43, Ex. 13). At the hearing, the Commissioners told plaintiff that she could continue her employment with the County if she were willing to accept a position in a different area. Plaintiff expressed her desire to go back to her position as a Senior Buyer, or to a comparable position. (Id. at 31). Plaintiff and the Commissioners did not reach an agreement concerning an appropriate position. Ultimately, the Board of Commissioners decided to terminate plaintiff with a new effective date of October 14, 2002. (Id. at 34).
Additional facts are discussed in context below.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The movant carries its 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, 2554, 91 L. Ed. 2d 265 (1986). "Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The nonmovant is then required "to go beyond the pleadings" and to present competent evidence in the form of affidavits, depositions, admissions and the like, 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 nonmovant'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). Resolving all doubts in favor of the nonmoving party, the court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson, 477 U.S. at 252.
III. DISCUSSION
A. Failure to Promote
Plaintiff alleges that she was subjected to racial discrimination when she was not selected for the following positions: Public Information Officer, Administrative Assistant to the Board of Commissioners, Judicial Administrative Assistant, Fire Safety Educator, Tax Appraiser Position, and Senior Services Position.
Title VII makes it unlawful for an employer to fail to hire or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of that individual's race. 42. U.S.C. § 2000e-2(a)(1). To establish a prima facie case of discriminatory failure to promote, a plaintiff must prove: (1) she belongs to a protected class; (2)she was qualified for the position sought; (3) she was not selected for the position; and (4) the employer awarded the position to someone outside her protected class. Walker v. Mortham, 158 F.3d 1177, 1192 (11th Cir. 1998). Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. After the employer articulates a legitimate, non-discriminatory reason, the presumption of discrimination or retaliation created by the prima facie case is rebutted, and the burden then shifts back to the plaintiff to raise a genuine factual issue as to whether the employer's proffered reason is merely a pretext to mask a discriminatory action. Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997).
Plaintiff's brief, (Doc. 51), gives the court virtually no information in support of her claims of discriminatory failure to promote. She cites to no evidence in the record that establishes that: (1) she applied for a particular position within the statutory period; (2) she was qualified for the position sought; and (3) a person outside her protected class was selected. (See Doc. 51at 15-16). Plaintiff's Statement of Disputed Material Facts, (Doc. 50), does not set forth any facts relating to her failure-to-promote claims. Thus, plaintiff has not provided the court with the basic information needed to establish a prima facie case of discriminatory failure to promote. Moreover, she failed to respond to most of the County's arguments regarding the promotions.
Nevertheless, by piecing together statements in Henry County's Statement of Material Facts, (Doc. 43-2), with plaintiff's Response thereto, (Doc. 49), the court has been able to come up with the following undisputed facts related to the promotions:
1. Public Information Officer
The job announcement for the Public Information Officer position for which plaintiff applied stated that applicants needed five years' experience in journalism, public relations, or a related field. Plaintiff did not have the requisite qualifications. Henry County selected Larry Stanford for the position. From 1993 until 1999, Stanford had been the Editor of the Jackson Progress-Argus. (Doc. 43-2, Def. Facts ¶¶ 24-29). Thus, defendant has established that plaintiff was not qualified for this position, and that even if she had been minimally qualified, a more qualified person was selected.
2. Administrative Assistant to Board of Commissioners
The Administrative Assistant to the Board of Commissioners position for which plaintiff applied paid $24,523.20 per year. Plaintiff would have received a pay reduction of approximately $3,000 if Henry County had selected her for the position. (Doc. 43-2, Def. Facts ¶¶ 30-31). Thus, defendant has established that failure to transfer plaintiff to that position (while she was employed in the Purchasing Department) was not an adverse employment action.
3. Judicial Administrative Assistant
Applicants for the Judicial Administrative Assistant vacancy had to be able to type at least 70 words per minute. Plaintiff was not able to type 70 words per minute when she applied for the position. Cindi Owens, who was more qualified than plaintiff for the position, was selected. (Doc. 42-2, Def. Facts ¶¶ 32-35). Thus, defendant has established that plaintiff was not qualified, and that even if she had possessed the minimum qualifications, a more qualified person was selected.
4. Fire Safety Educator Position
Applicants for the Fire Safety Educator position for which plaintiff applied were required to have "extensive training" in fire safety education and related subjects. Plaintiff lacked extensive training in fire safety education. (Doc. 43-2, Def. Facts ¶¶ 36-37). Thus, plaintiff was not qualified for the position.5. Tax Appraiser Position
Plaintiff applied for a Tax Appraiser position in 2000. The position was filed in September 2000 and again in January 2001. (Doc. 42-2, Def. Facts ¶¶ 38-39). Because plaintiff did not file her first charge of discrimination with the EEOC until June 4, 2002, any claim relating to this position is time barred. See Lathem v. Dept. of Children and Youth Servs., 172 F.3d 786, 792 (11th Cir. 1999) (noting that a plaintiff may recover damages under Title VII only for known or unlawful practices that occurred within 180 days of filing an administrative complaint with EEOC).
6. Senior Services Department
The County has no record of plaintiff submitting an application for any job opening in the County's Senior Services Department in the years 2000, 2001, or 2002. (Doc. 43-2, Def. Facts ¶ 41). Plaintiff's response to defendant's statement of facts, (Doc. 49 ¶ 41), cites to her deposition at pages 108 through 110 to show that she applied fir a position in the Senior Services Department. The court has read pages 108 through 110 and finds that nothing on those pages establishes that plaintiff applied for a position in the Senior Services Department. In any event, there is no evidence as to the qualifications for the position, or the race or sex of the successful candidate.
In sum, the above facts demonstrate that plaintiff's promotion claim with respect to the Tax Appraiser position was untimely, and that she can not establish a prima facie case of discrimination and/or rebut the County's asserted non-discriminatory reasons for not selecting her with respect to the remaining positions.
B. Denial of Promotional Opportunities in the Purchasing Department
Plaintiff also alleges that she was denied opportunities to advance within the Purchasing Department. She contends that McCanless allowed a lower-level white female administrative assistant opportunities to enhance her skills by performing tasks outside of her job description, but denied plaintiff opportunities to enhance her skills. (Doc. 51, Pla. Brf. at 21-22).
Plaintiff was promoted to the position of Senior Buyer in the fall of 2000, at which time her salary was increased from $20,663.60 to $27,060.80 per year. (Doc. 43-2, Def. Facts ¶¶ 6-7). There were two positions above hers in the purchasing department, Director and Purchasing Agent. Neither of these positions was ever vacant during the time plaintiff was a Senior Buyer. (Def. Facts ¶¶ 8,9). Thus, there is no evidence that plaintiff was denied a promotion within the Purchasing Department.
Plaintiff's complaints about being denied opportunities to work on certain types of projects while in the Purchasing Department are too vague to be considered an adverse employment action.See Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1239 (11th Cir. 2001) (finding that an employment action qualifies as an adverse employment action under Title VII only if it "impact[s] the `terms, conditions, or privileges' of the plaintiff's job in a real and demonstrable way."). A change in an employee's work assignment, if not accompanied by a tangible harm or some unusual circumstance, is generally not sufficient.Davis, 245 F.3d at 1244.
C. Wage Discrimination
Plaintiff acknowledges receiving annual pay raises, but contends that the increases in her wages were less than they should have been because of her race. Case 1:04-cv-00649-GGB Document 59-1 Filed 12/07/2005 Page 16 of 33
Plaintiff contends that white employees in the Purchasing Department received a 5% increase, as compared to her 2.5 % increase. (Doc. 51 at 21). The court cannot locate any evidence supporting this allegation. Plaintiff cites to the EEOC determination letter, which states this to be true, but the EEOC determination letter is not itself admissible evidence, and it does not cite to any admissible evidence to support its conclusion. (Doc. 51, Ex. 5). Plaintiff also cites to McCanless' deposition at pages 53 through 54, but those pages also do not support her allegation. McCanless actually testified that every two years an employee received a longevity increase of 2.5%, and that generally, County employees also received an additional 2.5% yearly increase. Accordingly, some years some employees would receive a 5% increase in pay, while others would receive only a 2.5% increase. (McCanless Dep. at 53-54).
Plaintiff's brief, (Doc. 51 at 21), quotes McCanless as admitting to the following in his deposition at pages 53 through 54: "he recommended salary increases that ranged from 5% to 10% for employees within the Purchasing Department, other than the Plaintiff." Neither that quotation, nor the substance of that quotation appears in McCanless' deposition. Plaintiff's counsel is cautioned that the court will consider sanctions for future misrepresentations of the record.
Plaintiff may show a prima facie case of wage discrimination under Title VII by presenting evidence that: (1) she is a member of a protected class; and (2) she occupies a position similar to employees who are outside of her protected class who are compensated at a higher rate. Blount v. Alabama Co-op. Extension Serv., 869 F. Supp. 1543, 1550 (M.D.Ala. 1994). Plaintiff compares herself to Susan Harris, a white female administrative assistant in the Purchasing Department, who received a percentage wage increase higher than that of plaintiff. Plaintiff acknowledges that she began working in the Purchasing Department in a lower level position than that of Harris and that she was later promoted to a position above Harris, who had been with the County longer than plaintiff. (Pla. Dep. at 44). Plaintiff's job was different from that of Harris, and plaintiff's salary was higher even after Ms. Harris' last raise. (Doc. 43, Ex. 19). Thus, plaintiff cannot establish a prima facie case by comparing herself to Harris. Even if their positions were similar, the court is aware of no authority that allows a higher paid employee to establish a prima facie case of discrimination by comparison to a lower paid employee on the ground that the lower paid employee received a higher percentage increase in her salary. If in fact the positions are comparable, then it defies logic to suggest that the higher paid employee with a shorter tenure has suffered discrimination in her pay.
D. Sexual Harassment/Hostile Work Environment
Title VII prohibits sexual harassment that is "sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'" Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982). To establish a claim, plaintiff must show: (1) that she belongs to a protected group; (2) that she has been subjected to unwelcome harassment; (3) that the harassment was based on her protected characteristic; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment and to create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc), cert. denied, 529 U.S. 1068, 120 S.Ct. 1674, 146 L.Ed.2d 483 (2000).
Title VII is not a federal civility code, but rather is directed at discrimination that occurs because of a person's sex. The crucial issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the opposite sex are not exposed. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78-80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); see also Mendoza, 195 F.3d at 1253 (Edmondson, J., concurring) ("at least when the sexual content of a [harasser's] conduct is not obvious, a plaintiff asserting a claim of sexual discrimination in employment must present some evidence that plaintiff's coworkers, those not of plaintiff's sex, were treated differently and better.").
Henry County argues that the conduct plaintiff describes was not sufficiently severe or pervasive to constitute actionable harassment. To determine whether harassment is sufficiently severe or pervasive to alter a "term, condition, or privilege" of employment, the court must look to "all the circumstances," including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). "Title VII is only implicated in the case of a workplace that is `permeated with discriminatory intimidation, ridicule and insult,' not where there is the `mere utterance of an . . . epithet.'" Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276-77 (11th Cir. 2002) (quoting Harris, 510 U.S. at 21). Federal law does not prohibit "`simple teasing,' offhand comments, and isolated incidents (unless extremely serious)." Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) (citation omitted). To be actionable, a hostile work environment "must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher, 524 U.S. at 787.
The Court of Appeals for the Eleventh Circuit has given guidance on the type of conduct that does not rise to the level of "severe or pervasive." In Mendoza, the plaintiff testified that her supervisor "constantly" watched her and followed her around; that he "would look [her] up and down . . . in a very obvious fashion"; that, on two occasions, he focused his eyes on her groin area and made a sniffing motion; that on a single occasion he rubbed his right hip against hers while touching her shoulder and smiling; and that, when the plaintiff went into his office and stated that she "came here to work," he responded by saying, "Yeah, I'm getting fired up, too." Mendoza, 195 F.3d at 1242-43. The Court of Appeals concluded that this conduct fell "well short of the level of either severe or pervasive conduct sufficient to alter [the plaintiff's] terms and conditions of employment." Id. at 1247.
Significantly, the Mendoza court, while reviewing cases from other circuits, implied that the following behavior would also not rise to the "minimum level of severity or pervasiveness necessary for harassing conduct" to be actionable under the statute: repeated staring at the plaintiff's breasts, telling sexual jokes, and four instances of touching her arm, finger and buttocks, Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir. 1998), cert. denied, 528 U.S. 988, 120 S.Ct. 450, 145 L.Ed.2d 367 (1999); commenting that the plaintiff's "elbows are the same color as [her] nipples" and that she had big thighs, touching her arm and attempting to look down her dress,Shepherd v. Comptroller of Public Accounts of Texas, 168 F.3d 871, 872-75 (5th Cir. 1999), cert. denied, 528 U.S. 963, 120 S.Ct. 395, 145 L.Ed.2d 308 (1999); commenting that the plaintiff had the "sleekest ass" in the office and touching her "breasts with some papers that he was holding in his hand," Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d. Cir. 1998); positioning a magnifying glass over the plaintiff's crotch,Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 753-54 (4th Cir.), cert. denied, 519 U.S. 818, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996); repeatedly asking about the plaintiff's personal life, calling her a "dumb blonde," touching her shoulder at least six times, placing "I love you" signs on her work area, and trying to kiss her three times, Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993); and nine instances of offensive behavior over seven months including repeated references to plaintiff as a "tilly" and a "pretty girl" and one instance of simulated masturbation, Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995). Mendoza, 195 F.3d at 1246-1247.
A year later, in Gupta v. Florida Board of Regents, 212 F.3d 571 (11th Cir. 2000), cert. denied, 531 U.S. 1076, 121 S.Ct. 772, 148 L.Ed.2d 671 (2001), the Court of Appeals again addressed the type of conduct required to reach the requisite level of severity and/or pervasiveness needed to establish a sexual harassment claim. In Gupta, the plaintiff complained that her male supervisor, inter alia: (1) told her she looked beautiful; (2) called her at home and asked her personal questions; (3) on one occasion, when the plaintiff entered his office while he was wearing only an undershirt, "grabbed his dress shirt, `unbuckled his belt and pulled down his zipper and start[ed] tucking his shirt in'"; (4) stared at her twice; (5) touched her ring and bracelet once; and (6) placed his hand on the plaintiff's knee and touched the hem of her dress. Gupta, 212 F.3d at 585. The court found that this behavior was neither severe nor pervasive, but rather exemplified "the ordinary tribulations of the workplace . . . which the Supreme Court and this Court have held do not constitute actionable sexual harassment." Id. at 586 (quoting Faragher, 524 U.S. at 788).
When considered as a whole and viewed in the context of the above-cited cases, the sexually tinged and offensive conduct by McCanless, however inappropriate, was not sufficiently severe or pervasive to satisfy the high threshold needed for actionable harm. The complained-of behavior by McCanless took place on isolated occasions from 1999 to 2002. He did not touch plaintiff or make threats. Other than his comment in response to plaintiff's request for aspirin, he made no requests for sexual favors. As to that comment, plaintiff acknowledges that it was made jokingly. While such a joke was inexcusable and inappropriate in the workplace, it was not considered by plaintiff to be a request for a sexual favor. (Doc. 43, Ex. 1). Some of the complained-of conduct, such as asking plaintiff to lunch or for drinks, asking if she watched the television program "Sex and the City," and using profanity around all of the staff, was relatively mild and not necessarily directed at plaintiff because of her sex. One of the sexually offensive comments was directed at another employee and overheard by plaintiff. Several of the comments were of a type similar to those that can be heard on prime-time television or at the movies.
In short, the evidence does not support a finding that McCanless' sexual comments and behaviors were severe or frequent, or that they permeated the workplace. His alleged conduct is similar to that described in the above-cited cases, which the Eleventh Circuit and other courts have found to be not actionable. See also Smith v. Beverly Health and Rehab. Services, Inc., 978 F.Supp. 1116, 1120 (N.D.Ga. 1997) ("Racial slurs must be `so common place, overt and denigrating that they created an atmosphere charged with racial hostility.'") (quoting Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir. 1995)).
E. Suspension and Termination
1. Race and/or Sex Discrimination
The court will assume that plaintiff contends that her suspension and termination were due to her race and sex. Title VII makes it unlawful for an employer to terminate an individual's employment because of that individual's race or sex. 42 U.S.C. § 2000e-2(a)(1). A plaintiff may establish a prima facie case of discriminatory termination by showing that she was (1) a member of a protected class, (2) qualified for the job, (3) terminated, and (4) treated less favorably than similarly situated employees outside of her protected class or replaced by someone outside her protected class. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997); Cuddeback v. Florida Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004).
Plaintiff alleges, without citation to any evidence, that she was replaced by someone outside her protected class. (Doc. 51, Pla. Brf. at 23). The court cannot credit this allegation without a citation to some evidence.
Plaintiff also attempts to establish the fourth element of a prima facie case by comparing herself to McCanless, who was not terminated at the time she was terminated. (Doc. 51 at 22). Plaintiff and McCanless occupied different positions in the Purchasing Department and were not similarly situated. Moreover, at the time plaintiff was terminated, she, and not McCanless, had been requested to report to a new department. Thus, any comparison to McCanless does not create an inference of race or sex discrimination.
2. Retaliation
Plaintiff alleges that after she filed her EEOC complaint, defendant retaliated against her by suspending her and ultimately terminating her employment. To establish a prima facie case of retaliation, plaintiff must show (1) that she engaged in statutorily protected activity, (2) that she suffered an adverse employment action, and (3) that a causal connection exists between the two. Donnellon v. Fruehauf Corp., 794 F.2d 598, 600-601 (11th Cir. 1986); Farley v. Nationwide Mut. Ins., 197 F.3d 1322, 1336 (11th Cir. 1999).
Plaintiff clearly engaged in statutorily protected activity when she filed a complaint with the EEOC on June 4, 2002. She and McCanless were thereafter suspended with pay on June 20, 2002. Personnel forms provided by the County show that plaintiff and McCanless were given "Administrative leave with pay until EEOC mediation and further investigation." (Doc. 43, Ex. 5). At the conclusion of the County's investigation, McCanless was given a fifteen day suspension without pay and a written reprimand. (Doc. 43, Ex. 6). However, McCanless was able to work extra hours as "comp. time" to avoid ten of the days of lost pay. (McCanless Dep., Exhs. 7 8). McCanless resumed his position as Director of the Purchasing Department after serving some of the suspension and served in that capacity until February 27, 2004. The County terminated McCanless, effective February 27, 2004, for failing to report to a new assignment. (Doc. 43, Ex. 26).
The only reason given by the County for suspending plaintiff was the EEOC mediation and further investigation. Plaintiff was never permitted to return to her position in the Purchasing Department and was ultimately terminated while she was on suspension. Accordingly, a jury could find a causal connection between plaintiff's protected activity and her removal from her position in the Purchasing Department. Therefore, plaintiff has established a prima facie case of retaliation.
Assuming the County believed it was necessary to separate plaintiff from McCanless during the investigation of her complaints against McCanless, the County has not explained: (1) why it waited until almost a month after plaintiff's internal complaint of harassment by McCanless to separate her from McCanless; (2) why it needed to suspend plaintiff when McCanless' suspension would have accomplished the separation; and (3) why it did not reinstate plaintiff (as it did McCanless) into her previous position in the Purchasing Department after its investigation had been completed and McCanless had been disciplined.
The County argues that it had a legitimate non-discriminatory reason for terminating plaintiff when she did not report to a new position in the Finance Department pursuant to its letter of August 30, 2005. (Doc. 43 at 29-30). This argument does not respond to plaintiff's claim that the suspension itself was retaliatory, (see Doc. 1, Ex. B), or explain why plaintiff was not returned to her original position. Moreover, a jury could find that the reason given by the County for terminating plaintiff is pretextual because (1) neither a position nor an office were available for plaintiff when she reported for work in the Finance Department on August 13, 2002, and (2) plaintiff did not have the required background in accounting for the position of Courts Accounting Clerk that was offered to her.
The County also argues that plaintiff cannot prevail on her unlawful termination claim because she was not qualified for employment at any time relevant to her termination. To support this argument, the County relies on: (1) a letter from plaintiff's psychologist to plaintiff's attorney on September 5, 2002, in which the psychologist states that she had advised plaintiff to "refrain from her work duties" as of August 8, 2002 "for an indefinite time frame due to mental health reasons," (Doc. 43, Ex. 27), and (2) plaintiff's application for Social Security disability benefits on July 26, 2004, in which plaintiff stated that she had became unable to work because of a disability on October 12, 2002. (Doc. 43, Ex. 28).
The court does not find these arguments persuasive on the issue of liability. The letter from the psychologist is, at most, evidence of the psychologist's opinion. It is not indisputable evidence that plaintiff was disabled as of August 8, 2002. Plaintiff did not recall being told by her psychologist that she could not work, and she believed that she could have returned to work on August 8, 2005. (Pla. Dep. at 179-80). In any event, a jury could find that a retaliatory adverse employment action took place on June 20, 2002, when plaintiff was suspended, and that the County's suspension of plaintiff caused or contributed to her mental state on August 8, 2005.
Similarly, by the time plaintiff had applied for Social Security Disability benefits and asserted that she had become disabled on October 12, 2002, she had already been suspended and terminated. Plaintiff's subsequent claim of disability could serve to reduce the amount of back pay or front pay to which she may be entitled, but it does not require summary judgment for the County on her claim of a retaliatory suspension and termination. A jury could find that plaintiff is entitled to compensatory damages for her suspension and initial termination.
Plaintiff was initially terminated effective September 10, 2002. The fact that the Board of Commissioners later changed the effective date to October 14, 2002 does not change the court's analysis.
F. State Law Claims
Plaintiff concedes that her state law claims against the County are barred by sovereign immunity. (Doc. 51, Pla. Brf. at 32). Therefore, these claims should be dismissed.
Plaintiff asserts a state law claim of intentional infliction of emotional distress against McCanless. For this claim, plaintiff relies on the same conduct that she alleges in support of her claim of sexual harassment/hostile work environment.
Under Georgia law, "[t]he four elements which must be proved in order to sustain a claim of intentional infliction of emotional distress are: (1) [t]he conduct must be intentional or reckless; (2) [t]he conduct must be extreme and outrageous; (3) [t]here must be a causal connection between the wrongful conduct and the emotional distress; and (4) [t]he emotional distress must be severe." Everett v. Goodloe, 268 Ga.App. 536, 545, 602 S.E.2d 284, 292 (2004) (quoting Northside Hosp. v. Ruotanen, 246 Ga.App. 433, 435, 541 S.E.2d 66 (2000)). "[I]t has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort." Everett, 602 S.E.2d at 292. "Liability has been found only where the conduct has been so outrageous in character, and 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." Id. "Therefore, alleged tasteless and rude social conduct is not actionable[,] and there is no occasion for the law to intervene in every case where someone's feelings are hurt." Id. (internal quotations and brackets omitted) (quoting Kornegay v. Mundy, 190 Ga.App. 433, 434-435, 379 S.E.2d 14 (1989)). The fact that the alleged inappropriate conduct occurred in an employment setting, however, may "produce a character of outrageousness that otherwise might not exist."Mears v. Gulfstream Aerospace Corp., 225 Ga.App. 636, 641, 484 S.E.2d 659, 664-65 (1997) (quoting Coleman v. Housing Authority of Americus, 191 Ga.App. 166, 381 S.E.2d 303 (1989)). "Only where the distress inflicted is so severe that no reasonable person could be expected to endure it does the law intervene."Everett, 602 S.E.2d at 292.
Applying the above standards, the court finds that McCanless' alleged conduct was not sufficient, as a matter of law, to constitute intentional infliction of emotional distress.
Plaintiff also brings a claim against McCanless for invasion of privacy. Georgia law recognizes four distinct forms of actionable invasion of privacy: (1) intrusion upon plaintiff's seclusion or solitude or into her private affairs; (2) public disclosure of embarrassing private facts about plaintiff; (3) publicity which places plaintiff in a false light in the public eye; and (4) appropriation of plaintiff's name or likeness to defendant's advantage. See, e.g., Peacock v. Retail Credit Co., 302 F.Supp. 418, 422 (N.D.Ga. 1969) (citing Cabaniss v. Hipsley, 114 Ga.App. 367, 151 S.E.2d 496 (1966)), aff'd, 429 F.2d 31 (5th Cir. 1970), cert. denied, 401 U.S. 938, 91 S.Ct. 927, 28 L. Ed. 2d 271 (1971).
Plaintiff seeks to recover for the first category of invasion of privacy. This tort applies to "a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person's private concerns." Summers v. Bailey, 55 F.3d 1564, 1566 (11th Cir. 1995) (quoting Yarbray v. Southern Bell Tel. Tel. Co., 261 Ga. 703, 409 S.E.2d 835, 837 (1991)). In order to recover for intrusion upon seclusion, plaintiff must demonstrate that she was subjected to a physical intrusion that is analogous to a trespass. Association Services, Inc. v. Smith, 249 Ga.App. 629, 549 S.E.2d 454, 459 (2001);see also Pinkerton Nat'l Detective Agency, Inc. v. Stevens, 108 Ga.App. 159, 132 S.E.2d 119 (1963) (finding allegations of peering into home's windows and surveillance on public thoroughfares aimed to frighten or torment to be sufficient). Plaintiff has set forth no facts that would qualify as invasion of privacy under Georgia law.
IV. CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS that Henry County's Motion for Summary Judgment [Doc. 43] be GRANTED in part and DENIED in part and that defendant McCanless' Motion for Summary Judgment [Doc. 41] be GRANTED. The undersigned recommends that all of plaintiff's claims be dismissed with the exception of her Title VII claim of retaliatory suspension and termination.
IT IS SO RECOMMENDED,