Cotton v. Carl Eric Johnson, Inc., CIVIL ACTION FILE NO. 1:16-cv-00072-TWT-AJB

• Court: U.S. District Court — Northern District of Georgia
• Writing for the Court: ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE
• Parties: EDWARD COTTON, Plaintiff, v. CARL ERIC JOHNSON, INC., Defendant.
• Docket Number: CIVIL ACTION FILE NO. 1:16-cv-00072-TWT-AJB
• Decision Date: 18 January 2018

EDWARD COTTON, Plaintiff,
v.
CARL ERIC JOHNSON, INC., Defendant.

CIVIL ACTION FILE NO. 1:16-cv-00072-TWT-AJB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

January 18, 2018

UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

The matter is presently before the Court on a motion for summary judgment filed by Defendant Carl Eric Johnson, Inc. ("CEJ"). [Doc. 47]. For the reasons set forth herein, the undersigned RECOMMENDS that the motion be GRANTED IN PART and DENIED IN PART.

I. Summary Judgment Standard

Summary judgment is proper when no genuine issue as to any material fact is present, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party carries the initial burden of "informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact." Rice-Lamar v. City of Fort Lauderdale,

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232 F.3d 836, 840 (11^th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party may also meet its burden by pointing out that there is an absence of evidence to support an element of the case on which the nonmoving party bears the burden of proof. Celotex, 477 U.S. at 325. "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 (11^th Cir. 1991).

The nonmoving party is then required "to go beyond the pleadings" and 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. The Court must view the evidence and factual inferences in the light most favorable to the nonmoving party. See United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11^th Cir. 1991) (en banc). And, to the extent that material facts are genuinely in dispute, the Court must resolve the disputes in the nonmovant's favor. See Vaughan v. Cox, 343 F.3d 1323, 1326 n.1 (11^th Cir. 2003).

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However, "the mere existence of a scintilla of evidence" supporting the nonmovant's case is insufficient to defeat a motion for summary judgment. Anderson, 477 U.S. at 252. Additionally, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. If the record does not blatantly contradict the nonmovant's version of events, the court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." See Anderson, 477 U.S. at 252; see also EPL Inc. v. USA Fed. Credit Union, 173 F.3d 1356, 1362 (11^th Cir. 1999); Duke v. Cleland, 884 F. Supp. 511, 514 (N.D. Ga. 1995). "If the record presents disputed issues of material fact, the Court may not decide them; rather, it must deny the motion and proceed to trial." FindWhat Inv. Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11^th Cir. 2011) (citing Tullius v. Albright, 240 F.3d 1317, 1320 (11^th Cir. 2001)).

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II. Background

A. Facts¹

Defendant CEJ is in the business of engineering and selling fluid-handling systems. (D ¶ 1).² Plaintiff Edward Cotton began working at CEJ through a staffing

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company on April 26, 2013, and was hired by CEJ as a full-time employee on August 5, 2013. (P ¶¶ 19, 20; D ¶ 2). Plaintiff worked as a welder/fabricator during his time at CEJ. (P ¶ 21; D ¶ 3).

Plaintiff was one of three welder/fabricators during his time at CEJ. (D ¶ 7). Crystal Padilla was CEJ's Vice President and Chief Financial Officer and was also the on-site manager. (P ¶ 1; D ¶ 38). Padilla was the only senior manager on site, and everyone who worked in the building technically reported to her. (P ¶¶ 4, 5). One of the other welder/fabricators, Harold Fisher, was Plaintiff's supervisor. (D ¶ 11). Fisher was the shop manager and reported directly to Padilla. (P ¶ 6).

Plaintiff's job responsibilities included building equipment in accordance with drawings submitted by CEJ's engineering staff. (D ¶ 4). Tasks incidental to his position included gathering materials from stock, verifying materials against bills of materials, cutting raw materials to size, and welding, assembling, and preparing projects for shipment. (D ¶ 5). Welders/fabricators were also required to assist in CEJ's pump shop at times. (D ¶ 93).

Prior to Plaintiff's hiring, Fisher made a Styrofoam penis for the purposes of playing a joke on an old supervisor. (P ¶ 26). The Styrofoam penis was twelve inches

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long. (P ¶ 29). Following the joke, Fisher placed it in a box on a shelf in the shop. (P ¶ 27).

Shortly after Plaintiff became a full-time employee, there was an incident where Fisher danced suggestively and made humping motions at the table where Plaintiff was working. (P ¶ 24; Deposition of Edward Cotton ("Pl. Dep.") [Doc. 49] at 44-46).³ Plaintiff "didn't think anything of it" and, along with his co-workers, "laughed it off." (P ¶ 25; Pl. Dep. at 44).

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In mid-September 2013, Fisher found the Styrofoam penis while he was going through boxes. (P ¶ 28). Fisher thought it would be funny if he placed it in Plaintiff's welding helmet, and he did so. (P ¶ 30; D ¶ 45). When Plaintiff found the Styrofoam penis in his welding hood, he did not think it was funny and was upset. (P ¶ 31; D ¶¶ 45, 46; Pl. Dep. at 47-49). Seeing that Plaintiff was upset, Fisher told him that there was nothing wrong with having gay friends and that "This is how we play. . . . This is how we joke in the shop." (P ¶ 32; Pl. Dep. at 48). Plaintiff responded that he "did not joke like that" and did not care what Fisher did or who Fisher's friends were but that Plaintiff did not want their sexual lifestyle imposed on him. (P ¶ 33).

A couple of days later, the Styrofoam penis reappeared, taped to the motorcycle of James Hestir, another CEJ employee. (P ¶¶ 34, 35; D ¶ 48; Pl. Dep. at 50-54). When Hestir asked who had placed it on his motorcycle, Fisher pointed at Plaintiff. (P ¶ 37). Plaintiff's co-workers almost goaded Plaintiff into taping the Styrofoam penis to the back of another co-worker's truck, but the co-worker saw him, and Plaintiff did not follow through. (D ¶ 47); [Doc. 3 (Compl.) at 12]. At that point, the Styrofoam penis was sitting on Fisher's work desk. (P ¶ 38). Plaintiff took it to Fisher's office and put it in a backpack he found hanging there. (P ¶ 38).

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Fisher eventually "felt things had gotten out of hand" and "cut [the penis] up, destroyed it and threw it away." (P ¶ 42). No one reported the pranks involving the Styrofoam penis. (P ¶ 43).

Each welder/fabricator worked at his own individual work station. (D ¶ 8). Plaintiff had initially worked at a station located approximately six to ten feet from the other welder/fabricators. (D ¶¶ 9, 63). In or around November 2013, Fisher moved Plaintiff to a different work station approximately fifteen to twenty feet from the other two welder/fabricators. (P ¶ 49; D ¶¶ 10, 63).

Around that time, Fisher began to tell Plaintiff stories about his gay friends and how they would ask Fisher to join in threesomes with them. (P ¶¶ 52, 68). Plaintiff would object to the conversation and would tell Fisher that he was not gay or bisexual and was not interested in that kind of talk. (P ¶ 53). Fisher would respond to Plaintiff's protest by stating, "Well, don't knock it until you try it." (P ¶ 54). Fisher would also regularly suggest that Plaintiff would like gay oral or anal sex. (P ¶ 55). He would go over to Plaintiff's table; say, "Be careful what you ask for"; and move his body in a sexually suggestive manner. (P ¶ 56). A couple of times per week, Fisher would come up from behind Plaintiff, perform a humping motion, and make comments such as, "I

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bet you would like it like that." (P ¶ 57). Fisher would call Plaintiff "baby"; say, "oh, baby"; and wolf whistle at him on a daily basis. (P ¶ 69).

In December 2013, Fisher commented to Plaintiff that Plaintiff would not know the difference between a man sucking his penis versus a woman sucking his penis. (P ¶ 61). In response to this, and on numerous other occasions, Plaintiff responded by telling Fisher not to "come at me like that" because Plaintiff was not gay or bisexual. (P ¶ 62). He would repeatedly tell Fisher that Fisher's having gay or bisexual friends did not bother him but that "what does offend me is when you try to push it off on me." (P ¶ 62).

In January 2014, upon seeing Plaintiff welding with his tongue out, Fisher said, "I bet you would like it in your mouth." (P ¶ 58). In response, Plaintiff said, "Man, we don't play like that," and reiterated that he was not gay or bisexual and that Fisher's comments were inappropriate. (P ¶¶ 59, 60; Pl. Dep. at 71). On another occasion, Fisher told Plaintiff that his gay friends were going out of town and asked Plaintiff to come over to his friends' house, where he said they could be alone. (P ¶ 66).

At another time in January 2014, Fisher came up behind Plaintiff while he was welding and grabbed him in approximately the hip area in a sexually suggestive manner, touching very close to Plaintiff's genitals. (P ¶ 63; D ¶¶ 61, 62;

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Pl. Dep. at 74-75, 87).⁴ Plaintiff turned around and said, "I do not play like that. Don't touch me." (P ¶ 64). Fisher walked away, but later, he taunted Plaintiff by stating in front of others that Plaintiff "likes to be...