Brassfield v. Jack McLendon Furniture, Inc.
| Decision Date | 08 October 1996 |
| Docket Number | Civ. A. No. 95-D-476-N.,Civ. A. No. 95-D-475-N. |
| Citation | 953 F.Supp. 1424 |
| Parties | Marsha Ann BRASSFIELD, Sharon K. Pierson, Plaintiffs, v. JACK McLENDON FURNITURE, INC., et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
David G. Flack, Brenda Watson, Montgomery, AL, for plaintiffs.
Simeon F. Penton, Carla R. Cole, Michael B. Beers, Montgomery, AL, for defendants.
DE MENT, District Judge.
Before the Court is defendant, Mark Bodden's ("Bodden"), motions for summary judgment filed May 9, 1996. The plaintiffs, Marsha Ann Brassfield ("Brassfield") and Sharon K. Pierson ("Pierson"), filed a joint response June 11, 1996, and a corrected joint response on June 19, 1996. Subsequently, Bodden filed a motion to strike the affidavit of Marsha Ann Brassfield on September 24, 1996. The plaintiffs filed a supplementary response to Bodden's motion for summary judgment on September 26, 1996. After careful consideration of the evidence in the record, the arguments of counsel, and the relevant case-law, the Court finds that Bodden's motion for summary judgment is due to be granted.
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367. The parties do not contest personal jurisdiction or venue.
The claims in this case arise from activities which took place while the plaintiffs were employed by McLendon Furniture. Both plaintiffs and Bodden were employed as salespersons by McLendon. The plaintiffs claim that while employed by McLendon they faced continual sexual harassment from management personnel and salespeople. They further allege that they were discriminated against in pay and were eventually discharged on the basis of their sex. Plaintiff Brassfield initiated her suit in August, 1995, and named Jack McLendon Furniture, Inc., Jack McLendon, Lane McLendon, Jeffery Thornell, Walter Yarn and Mark Bodden defendants. Plaintiff Pierson brought suit in April, 1995, and named Jack McLendon Furniture, Inc., Jack McLendon, Lane McLendon, Jeffery Thornell, Braxton Thrash, and Mark Bodden defendants.
Bodden has been a sales person with McLendon Furniture since 1985. Bodden Depo. at 9. In 1994 his status changed from a full-time employee to a part-time employee. Bodden Depo. at 11. During the time the plaintiffs worked for McLendon furniture, Bodden was not in a management position. Brassfield Depo. at 286. Bodden had no supervisory authority over either of the plaintiffs.
Plaintiff Pierson was hired by McLendon furniture McLendon furniture on March 6, 1993. She was discharged on December 8, 1994. During her employment at McLendon Furniture, Pierson alleges that Bodden (1) asked her to sit on his lap in the presence of other salespersons, Pierson Depo. at 123-26; (2) made sexual remarks about the way she ate bananas, Pierson Depo. at 152-53; (3) made comments about a nude portrait of herself which she had brought to work, Pierson Depo. at 155-61; (4) agreed with the comments of another McLendon employee that he'd like to go skinny dipping with her and he'd like to see her in a wet tee shirt, Pierson Depo. 393-405; (5) speculated about her sex life, Brassfield Depo. at 184; and (6) made comments about her breasts and clothing, Brassfield Depo. at 185.
In July of 1994 and early August of 1994, plaintiff Pierson along with co-plaintiff Brassfield, sought legal advice regarding their sexual harassment claims. Pierson Depo. at 324. On August 26, 1994, Pierson filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in which she alleged discrimination, harassment and unequal pay on the basis of her sex and/or gender. She received a Notice of Right to Sue January 12, 1995. Pierson filed an amended charge with the EEOC on March 2, 1995. In this charge, she added a claim of retaliation for the actions of McLendon employees taken subsequent to the filing of her initial charge. Pierson received a second Notice of Right to Sue on March 2, 1995.
Pierson filed this action on April 7, 1995. Plaintiff Pierson has sued Bodden for eight counts. Count One of the complaint alleges a claim for sexual harassment and hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Count Two alleges disparate treatment under Title VII and a violation of the Equal Pay Act, 29 U.S.C. 206(d). Count Three makes an additional claim under Title VII for violations based on gender. Count Four states that, in violation of Title VII, she was retaliated against for filing her initial EEOC charge. Count Five makes a claim for constructive discharge. Count Six makes a claim for intentional infliction of emotional distress and the tort of outrage. Count Seven makes a claim for invasion of privacy. Count Eight makes a claim for defamation.
Brassfield began working at McLendon Furniture on March 23, 1993. Her employment was terminated on March 24, 1994. During her employment at McLendon, Brassfield alleges that Bodden (1) made comments about her clothes and breasts, referring to the latter as "tits" and "hooters," Brassfield Depo. at 294-98; (2) made comments about female customers' breasts and thighs in front of her, Brassfield Depo. at 177-78; and (3) asked about her sexual preferences, what her favorite positions were during sex, and whether she liked whips. Brassfield Aff. at 6.1
During her employment at McLendon Furniture, Brassfield declared bankruptcy. She filed a petition in bankruptcy September 7, 1993 and received a discharge on March 14, 1994.
In July of 1994 and early August of 1994, plaintiff Brassfield along with co-plaintiff Pierson, sought legal advice regarding their sexual harassment claims. Pierson Depo. at 324. Brassfield filed a charge with the EEOC on August 29, 1994 in which she alleged sexual harassment and disparate pay. She received her Notice of Right to Sue from the EEOC on January 12, 1995.
Brassfield initiated this action April 7, 1995. Brassfield has sued defendant Mark Bodden for seven counts.2 In Count One she claims sexual harassment and the existence of a hostile work environment in violation of Title VII. Count Two alleges disparate pay in violation of Title VII and the Equal Pay Act. Count Three makes an additional claim under Title VII for violations based on gender. Count Four claims retaliation for opposing practices made unlawful under Title VII. Count Five makes a claim for invasion of privacy. Count Six makes a claim for defamation. Count Seven makes a claim for intentional infliction of emotional distress and the tort of outrage.3
Initially, the Court will resolve the legal contentions raised by the parties.
The plaintiffs contend that the actions of all of the other named defendants should be attributed to Bodden to determine his individual liability. Pl.'s Corrected Resp. to Def.'s Mot. for Summ. J. at 25-26. In support of this contention the plaintiffs cite National Security Fire & Casualty Co. v. Bowen, 447 So.2d 133 (Ala.1983). However, Bowen stands only for the familiar proposition that a master is liable for the acts of its servants. Id. at 139-42. In the instant case, Bodden is not the master, and is not to be held liable for the acts of his co-defendants.
Joint and several liability is appropriate where the concurrent wrongful acts of multiple defendants cause the plaintiff injury. See Butler v. Olshan, 280 Ala. 181, 191 So.2d 7, 17 (1966). A plaintiff may maintain a joint and several action based on the concerted or independent actions of defendants. See Huntsville v. Davis, 456 So.2d 72, 74 (Ala. 1984). In Alabama, there is no apportionment of damages among joint tortfeasors. Matkin v. Smith, 643 So.2d 949, 951 (Ala. 1994). However, when, as in the instant case, independent actors make allegedly wrongful acts at clearly separate times, and the issues of proximate cause and/or damage apportionment are far from indeterminate, joint and several liability cannot be said to lie. Accord Fireman's Fund American Insurance Co. v. Coleman, 394 So.2d 334, 346 (Ala.1980) ().
Bodden has moved to strike the Brassfield's affidavit submitted to the Court in conjunction with plaintiffs' response to Bodden's motion for summary judgment. Bodden contends that Brassfield's affidavit is an attempt to alter, and is inconsistent with, her earlier deposition testimony.
The Eleventh Circuit has made it clear that a party cannot avoid summary judgment on the basis of a "sham" affidavit. See Van T. Junkins and Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). The job of the District Court is to distinguish "discrepancies [between an affidavit and earlier deposition testimony] which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence." Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.1986). The Tippens Court went on to state "[a]n affidavit may only be disregarded as a sham `when a party has given clear answers to unambiguous question which negate the existence of any genuine issue of material fact ... [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.'" Id. at 954 (quoting Van T. Junkins, 736 F.2d at 657). Only those affidavit statements which are "inherently inconsistent" with earlier deposition testimony should be stricken. See W.C. Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986); see also Moore v. Beneficial National Bank U.S.A., 876 F.Supp....
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