Akers v. Alvey

• Decision Date: 29 July 2003
• Docket Number: No. 02-5037.,02-5037.
• Parties: Cindy AKERS, Plaintiff-Appellant, v. Donald ALVEY and Kentucky Cabinet for Families and Children, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

338 F.3d 491

Cindy AKERS, Plaintiff-Appellant, v. Donald ALVEY and Kentucky Cabinet for Families and Children, Defendants-Appellees.

No. 02-5037.

United States Court of Appeals, Sixth Circuit.

Argued: June 20, 2003.

Decided and Filed: July 29, 2003.

Petition for Rehearing Denied: October 2, 2003. Pursuant to Sixth Circuit Rule 206

COPYRIGHT MATERIAL OMITTED

ARGUED: Kenneth L. Sales, SALES, TILLMAN & WALLBAUM, Louisville, Kentucky, for Plaintiff-Appellant.

Schuyler J. Olt, PEDLEY, ZIELKE & GORDINIER, Louisville, Kentucky, Edward L. Lasley, CONLIFFE, SANDMANN & SULLIVAN, Louisville, Kentucky, for Defendants-Appellees.

ON BRIEF: Kenneth L. Sales, SALES, TILLMAN & WALLBAUM, Louisville, Kentucky, for Plaintiff-Appellant.

Schuyler J. Olt, PEDLEY, ZIELKE & GORDINIER, Louisville, Kentucky, Edward L. Lasley, Richard M. Sullivan, CONLIFFE, SANDMANN & SULLIVAN, Louisville, Kentucky, for Defendants-Appellees.

Ruth Ann Cox, Pedley, Zielke & Gordinier, Louisville, KY, John C. Lewis, Sheila F. Redmond, Cabinet for Families and Children, Frankfort, KY, for Defendants-Appellees.

Before: BOGGS and GILMAN, Circuit Judges; DOWD, District Judge.^*

GILMAN, J., delivered the opinion of the court, in which BOGGS, J., joined. DOWD, D.J. (pp. 500-501), delivered a separate opinion concurring in the judgment.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Cindy Akers, a former family services worker with the Kentucky Cabinet for Families and Children, brought suit in federal district court against the Cabinet and her immediate supervisor, Donald Alvey, for sexual harassment. Specifically, Akers brought a claim under 42 U.S.C. § 1983 against Alvey in his official and individual capacities, claims under Title VII against the Cabinet for discrimination, hostile work environment, and retaliation, and a common law claim for the tort of outrage against both Alvey and the Cabinet. Akers alleges that Alvey engaged in pervasive sexual misconduct towards her, that the Cabinet acquiesced in that conduct, and that the Cabinet retaliated against her when she complained.

Alvey and the Cabinet both moved for summary judgment. The district court dismissed all of the claims against Alvey, as well as Akers's discrimination, retaliation, and tort-of-outrage claims against the Cabinet. Akers's hostile-work-environment claim, however, was permitted to go forward.

Pursuant to an agreed order, the resolution of all of the dismissed claims was deemed final and immediately appealable by the district court. On appeal, Akers challenges the district court's grant of summary judgment for Alvey and its partial grant of summary judgment for the Cabinet. For the reasons set forth below, we REVERSE the judgment of the district court as to Akers's tort-of-outrage claim against Alvey, AFFIRM the judgment of the district court as to Akers's remaining claims, and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

The Cabinet hired Akers as a family services worker at the Grayson County office in July of 1997. On August 1, 1998, Alvey was promoted to be the supervisor of the same office. Akers first reported Alvey's allegedly inappropriate behavior to the Cabinet 18 days later. According to Akers's complaint, Alvey had engaged in pervasive, sexually offensive behavior, including the making of lewd gestures with his tongue and hand while moaning, commenting daily about Akers's physique (such as "nice ass"), getting very close to Akers and attempting to look down her blouse, questioning Akers extensively about masturbation and her sex-life with her boyfriend, expressing in front of other employees that he would like to have sexual intercourse with Akers, commenting to Akers about her coworkers' sexual histories and physiques, commandeering Akers's computer to send sexually explicit e-mail messages, and describing his last episode of oral sex in great detail. Akers alleged that Alvey engaged in over 30 acts of inappropriate behavior in a two-and-a-half month period.

The Cabinet conducted a two-week investigation into Akers's complaint, interviewed Akers, Alvey, and ten others, and found that her sexual-harassment claims were unsubstantiated. Akers however, was promptly removed from Alvey's supervision at the conclusion of the investigation. She alleges that during the time that the Cabinet was investigating her complaint, Alvey engaged in retaliatory conduct by refusing to speak to her, instructing other employees not to associate with her, withholding her mail and inter-office memoranda, and criticizing the way she handled her cases.

In January of 1999, Akers was transferred to the Hardin County office of the Department for Community Based Services to work as a domestic violence and child abuse investigator. According to Akers, she was never accepted in her new office because of her ongoing complaint against Alvey and, after "six months of antagonism," she felt that she had no choice but to resign her position. Akers sought psychological counseling for depression after leaving her job.

She reapplied with the Cabinet several months later for a position in the Richmond office, where she would have been supervised by Linda Miller. Although Miller called Akers to inform her that Miller would be recommending Akers for the job, Miller later changed her mind after receiving negative recommendations from Akers's former supervisors and coworkers, including Alvey, and upon learning of Akers's lawsuit.

II. ANALYSIS

A. Jurisdiction

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(1)(3), and 1367(a). Although a partial grant of summary judgment is not ordinarily appealable, the district court entered an agreed order under Rule 54(b) of the Federal Rules of Civil Procedure, rendering final and appealable the judgment on all dismissed claims. Rule 54(b) was enacted as "a response to the need created by the liberal joinder provisions of the Federal Rules of Civil Procedure to revise `what should be treated as a judicial unit for purposes of appellate jurisdiction.'" Corrosioneering v. Thyssen Envtl. Sys., 807 F.2d 1279, 1282 (6th Cir.1986). The Rule "attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties." Id. (internal quotation marks omitted). The determination of whether to allow for an appeal pursuant to Rule 54(b) is a matter left to the sound discretion of the district court. Id.

The Rule itself simply states that the district court must find that there is no just reason for delay of the appeal. Fed. R.Civ.P. 54(b). This court, however, has previously indicated that in order to avoid a finding of abuse of discretion in the certification of an appeal pursuant to Rule 54(b), the "district court should do more than just recite the Rule 54(b) formula of `no just reason for delay.'" Id. As the Supreme Court explained:

It is essential, however, that a reviewing court have some basis for distinguishing between well-reasoned conclusions arrived at after a comprehensive consideration of all relevant factors, and mere boilerplate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law.

Protective Comm. v. Anderson, 390 U.S. 414, 434, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968).

This court, in Corrosioneering, set forth the following "nonexhaustive list" of factors to consider:

(1) the relationship between the adjudicated and the unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Depending upon the factors of the particular case, all or some of the above factors may bear upon the propriety of the trial court's discretion in certifying a judgment as final under Rule 54(b).

Corrosioneering, 807 F.2d at 1283 (quoting Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir.1975)).

The district court's order in this case was in many respects the bare-bones certification that this court condemned in Corrosioneering. No analysis of the above factors was undertaken, and the only justification stated for declaring that there was "no just reason for delay" was a statement that the parties "hav[e] agreed that the outstanding issues with regard to dismissal of a claim against Alvey and the claims against the Cabinet would more economically be handled by an appellate decision prior to trial...." Because this case has already been briefed and argued on appeal, however, the scales of judicial economy are now tipped in favor of disposing of the appeal on the merits. But if the jurisdictional issue had been spotted sooner, we would likely have remanded the case in order for the district court to explicitly evaluate the Corrosioneering factors.

B. Standard of review

We review a district court's grant of summary judgment de novo. Sperle v. Mich. Dep't of Corr., 297 F.3d 483, 490 (6th Cir.2002). Summary judgment is proper 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(c). In considering such a motion, the court construes all reasonable factual inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v....