Bolt v. Norfolk Southern Corp.

• Decision Date: 31 July 1997
• Docket Number: No. 2:97CV805.,2:97CV805.
• Citation: 22 F.Supp.2d 512
• Parties: George David BOLT, Plaintiff, v. NORFOLK SOUTHERN CORP., and Kenneth E. Williams, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

22 F.Supp.2d 512

George David BOLT, Plaintiff, v. NORFOLK SOUTHERN CORP., and Kenneth E. Williams, Defendants.

No. 2:97CV805.

United States District Court, E.D. Virginia, Norfolk Division.

July 31, 1997.

Hunter W. Sims, Jr., Richard M. Feathers, Kaufman & Canoles, P.C., Norfolk, VA, for Kenneth E. Williams.

Samuel J. Webster, Heather A. Mullen, David N. Payne, Williams, Kelly & Greer, P.C., Norfolk, VA, for Norfolk Southern Corporation.

Rex V. Sparks, Norfolk, VA, for Plaintiff.

OPINION AND ORDER

MORGAN, District Judge.

Procedural History

Plaintiff George David Bolt ("Bolt") filed a complaint on August 8, 1996. He then filed an Amended Complaint on September 4, 1996. Originally, Bolt's Amended Complaint contained five counts. Each count was asserted against both Norfolk Southern Corporation ("Norfolk Southern") and Kenneth E. Williams ("Williams"). Count 1 alleges quid pro quo sexual harassment in violation of Title VII. Count 2 alleges hostile environment sexual harassment in violation of Title VII. Count 3 alleges a state common law assault and battery claim. Count 4 alleges a state common law intentional infliction of emotional distress claim. Count 5 alleges retaliation in violation of Title VII.

Ruling on a motion to dismiss filed by Williams alone, this Court dismissed the Title VII counts, as against Williams, on January 17, 1997 because Williams was not named in Bolt's EEOC complaint and had no notice of the charges. The motion to dismiss the emotional distress claim was denied under the 12(b)(6) standard. Thus, all five claims remain against Norfolk Southern and the two state law claims remain against Williams. Williams is moving for summary judgment on both state law claims and for severance of the action if they remain. Norfolk Southern is moving for summary judgment on all five counts.¹

Facts²

Plaintiff Bolt became a Norfolk and Western Railway Company apprentice carman in 1968. After training for about two years, he became a line tender helper at Lambert's Point Coal Piers ("Coal Piers"). After further training, Bolt became an electrician at the Coal Piers in 1974. Defendant Williams worked as an Electrical Foreman at the Coal Piers from 1981 until May 17, 1994 when he was terminated. Bolt alleges that Williams harassed him in both sexual and nonsexual manners.

Bolt alleges that Williams made sexual advances by patting his buttocks two to three times per month. He specifically recalls three incidents: a mid-1980's incident in the electric room of a ship loader; a 1988 incident in the shop area; and an April 29, 1994 incident in Williams' office. At two of these incidents, Williams also told him he had a "nice butt". Bolt also claims that Williams occasionally grabbed his buttocks, the last occurrence of which happened two or three weeks prior to April 29, 1994. Third, Williams attempted to hug him on four or five occasions between 1982 and 1994, the last such hug occurring one or two years prior to April 29, 1994. The hugs also involved verbal comments Bolt thought were sexually suggestive and later described Williams as talking "cutesy". Two times in 1992 and 1993, Williams pulled Bolt onto his lap and "performed simulated homosexual acts on him". In 1988, Williams touched his inner thigh as Williams, Bolt and another employee were getting into the cab of a truck. On several occasions, often following arguments between the two over work assignments and performance, Williams would tell Bolt that he liked him in a sexually suggestive manner. Williams apparently would raise his eyebrows up and down and use a high pitched voice. Finally, in the mid-1980's Williams invited Bolt to spend the night on his sail boat with him.

Incidents involving non-sexual harassment by Williams include: shaking Bolt by the shoulders on March 4, 1985 when Williams apparently thought he was asleep; pulling a pipe out of Bolt's mouth when Bolt did not react quickly to an order; taking food and drinks from Bolt; telling Bolt he was too short to be an electrician; falsely accusing Bolt of being away from his job without permission (charges were dropped when William's supervisor looked into them); throwing a hard hat when seeing Bolt in a supervisor hard hat and telling Bolt that he'd never work as a supervisor as long as he was at the railroad; telling Bolt he could treat him anyway he wanted to and that he would "make his life hell"; telling Bolt to "watch his step" when angry about a job assignment; and writing him up for a seat belt violation. While not knowing the specifies of the conversation, Bolt also alleges that Williams spoke in an overly friendly manner to Bolt's wife which upset her.

Williams first filed a charge of EEOC discrimination on February 22, 1995 alleging sexual harassment based on the April 29, 1994 incident. No pay or promotion issues were discussed in the charge. On April 26, 1996, Bolt filed a second charge of discrimination with the EEOC, alleging retaliation by General Foreman Wayne Henley and Mechanical Foreman Jerry Clemmer for having previously filed his prior harassment charge. Henley yelled at him and accused him of using his position on a safety committee as a weapon against other employees, but did not mention the prior EEOC complaint. Henley never treated him that way prior to the complaint. Clemmer has also treated him differently. Bolt specifically claims that Clemmer accused Bolt loudly over the radio system of not doing his assigned duties before checking to see why he was not there. Again, no explicit reference was made to the EEOC charge.

As an electrician, Bolt is an hourly wage, union contract employee whose pay and shift assignments are controlled by a collective bargaining agreement. No supervisor, including Williams, has the right to discipline or terminate Bolt without complying with the collective bargaining agreement. Bolt reported Williams' conduct in 1983 and 1987. The parties dispute whether he reported the harassment as sexual in nature. A written letter written in preparation for the 1987 meeting does not mention sexual harassment, but Bolt says he told the officials orally. Bolt did not complain within Norfolk Southern about any of the incidents after the 1987 meeting. That meeting apparently involved the master mechanic, union representatives, Bolt, and Williams. Bolt does not know what punishment, if any, Williams received in 1987, but perceived no difference in William's behavior and thus did not complain in the future.

Bolt was not physically injured by any of the conduct, but claims to have suffered emotional distress. He did not start seeing a therapist, Dr. Cohen, until May 1, 1996. He has seen her approximately six times, has not been hospitalized, and has not needed medication. At his deposition, Bolt testified that he has difficulty sleeping because he is anxious about losing his job. He also testified that he has less interest in his sexual relationship with his wife, however he has not sought medical advice on this matter.

Standard of Review

Among the purposes for summary judgment under Federal Rule of Civil Procedure 56 is "to require a plaintiff, in advance of trial and after a motion for summary judgment has been filed and supported, to come forward with some minimal facts to show that a defendant may be liable" for the claims alleged in a plaintiff's complaint. Douglas v. PHH FleetAmerica Corp., 832 F.Supp. 1002, 1007 (D.Md.1993). An order for summary judgment is only appropriate when a court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir.1985). Once a party has properly filed evidence supporting the motion for summary judgment, the nonmoving party may not rest upon mere allegations in the pleadings, but must instead set forth specific facts, through affidavits or other proof, which illustrate genuine issues for trial. Celotex Corp., 477 U.S. at 322-24, 106 S.Ct. 2548; Catawba Indian Tribe of South Carolina v. State of S.C., 978 F.2d 1334, 1339 (4th Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1415, 122 L.Ed.2d 785 (1993). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505; see also Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984); Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 640 (E.D.N.C.1966) aff'd, 388 F.2d 987 (4th Cir.1967); cert. denied, 390 U.S. 959, 88 S.Ct. 1039, 19 L.Ed.2d 1153 (1968).

If a plaintiff fails to rebut a defendant's motion with such evidence in his behalf, a summary judgment will result when appropriate. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548 (emphasis added).

Counts 1, 2 & 5 — Title VII Claims Against Norfolk Southern

Whether Bolt's Title VII Claims are Time Barred

Norfolk Southern argues that any incidents occurring prior to August 26, 1994, 180 days prior to filing of Bolt's Title VII Charge of Discrimination on February 22, 1995 are time barred and not part of the Court's jurisdiction. Since the last harassment incident occurred on April 29, 1995, Bolt's ...