Chancey v. Southwest Florida Water Management Dist.

• Decision Date: 24 April 1997
• Docket Number: No. 95-2027-CIV-T-17C.,95-2027-CIV-T-17C.
• Citation: 965 F.Supp. 36
• Parties: Barbara CHANCEY, et al., Plaintiffs, v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

965 F.Supp. 36

Barbara CHANCEY, et al., Plaintiffs, v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, et al., Defendants.

No. 95-2027-CIV-T-17C.

United States District Court, M.D. Florida.

April 24, 1997.

John A.C. Guyton, III, Rywant, Alvarez, Jones & Russo, P.A., Tampa, FL, for Barbara Chancey, Robin Tagliarini.

James Morgan Craig, Craig L. Berman, John-Edward Alley, Alley and Alley/Ford & Harrison, Tampa, FL, David S. Shankman, Newman, Levine, Metzler & Shankman, P.A., Tampa, FL, for Southwest Florida Water Management District.

Craig L. Berman, Alley and Alley/Ford & Harrison, Tampa, FL, for David Morgan.

ORDER ON MOTION FOR RECONSIDERATION

KOVACHEVICH, District Judge.

This cause is before the Court on Defendant's Motion for Reconsideration (Dkt.43), and Plaintiff's response (Dkt.46).

Defendant argues that the Court should have relied on Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir.1989) in ruling on Counts I and II, and should have granted summary judgment to Defendant on Counts I and II. Under Steele, employer liability exists only where the corporate defendants knew or should have known of the harassment, and failed to take prompt remedial action against the supervisor. Defendant argues that where overtly sexual speech and conduct appears sporadic, and then ceased; the allegedly hostile worker was suspended, and there were no complaints about ongoing conduct, there can be no claim of sexually harassing hostile environment. Defendant argues Plaintiffs did not put Defendant on notice of a complaint about any alleged continuing harassment from Spring, 1994 to December, 1994, when Plaintiffs resigned. Defendant notes that ostracism is not sufficient to support a finding of constructive discharge.

Plaintiff responds that the cases on which the Court relied, Faragher v. City of Boca Raton, 76 F.3d 1155 (11th Cir.1996), vacated 83 F.3d 1346, and Davis v. Monroe County Board of Education, 74 F.3d 1186 (11th Cir. 1996), vacated 91 F.3d 1418, rely upon standards defining hostile work environment as set forth by the Supreme Court. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986); Harris v. Forklift Systems, 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

Plaintiffs further respond that under Steele respondeat superior analysis, Defendant may be liable because Defendant was on notice of the harassment of Plaintiffs after Plaintiffs complained to management. Plaintiffs further note that many of the incidents of harassment occurred at District offices where at least one member of upper management worked. Plaintiffs assert nothing was done after notice to management. Plaintiffs argue that summary judgment is not appropriate on the basis of indirect or direct employer liability.

Discussion:

A. Hostile Work Environment

Since the Court relied on cases that were vacated for rehearing en banc, the Court will reconsider its analysis based on the present precedent of the Eleventh Circuit, Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir.1989).

Hostile environment sexual harassment occurs when an employer's conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive environment." Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1315 (11th Cir.1989)(quoting Vinson, 477 U.S. at 65, 106 S.Ct. at 2405; Henson, 682 F.2d at 908).

In Steele, the Eleventh Circuit stated:

Strict liability is illogical in a pure hostile environment setting. In a hostile environment case, no quid pro quo exists. The supervisor does not act as the company; the supervisor acts outside "the scope of actual or apparent authority to hire, fire, discipline, or promote." Corporate liability, therefore, exists only through respondeat superior; liability exists where the corporate defendant knew or should have known of the harassment and failed to take prompt remedial action against the supervisor.

Defendant requests the Court enter an order granting summary judgment to Defendant on Counts I and II because the name-calling stopped at a certain point, and Plaintiffs did not complain of further incidents to the superiors of David Morgan, Plaintiffs' supervisor, after that point, in Spring, 1994.

The Court denies the Motion for Summary Judgment as to this issue. To be actionable under Title VII, conduct giving rise to a hostile work environment need not consist of sexual advances or have clear sexual overtones. Conduct of a nonsexual nature that ridicules women or treats them as inferior can constitute prohibited sexual harassment. Sims v. Montgomery County Comm., 766 F.Supp. 1052, 1073 (M.D.Ala.1990). Threatening and bellicose conduct related to a person's sex can also be considered as sexual harassment. Bell v. Crackin Good Bakers, Inc., 777 F.2d 1497, 1503 (11th Cir. 1985); Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (M.D.Fla.1991); Hall v. Gus Construc., Co., 842 F.2d 1010, 1014 (8th Cir.1988); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.1987); McKinney v. Dole, 765 F.2d 1129, 1138 (D.C.Cir. 1985).

The Court finds that questions that should be resolved by the jury remain in this case, since Plaintiffs allege issues including, but not limited to, the restriction of work assignments, denial of overtime, retaliation, and requiring different standards of conduct for the female RPT's and male RPT's, and threatening behavior by Morgan towards Plaintiffs. There is the allegation that David Morgan told Chris Linhart that he would get even with Plaintiffs for getting him in trouble over the "sting" incident. There is also an issue for the jury as to whether upper management knew what was occurring, since Plaintiffs allege that Fritz Musselman, David Morgan's superior, ostracized Plaintiffs, along with David Morgan. The Court therefore denies the Motion for Reconsideration as to the hostile environment issue.

B. Constructive Discharge

Defendant further requests reconsideration as to the issue of constructive discharge. In Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1317 (11th Cir....