Cummings v. Walsh Const. Co.

• Decision Date: 31 March 1983
• Docket Number: Civ. A. No. CV 181-218.
• Citation: 561 F. Supp. 872
• Parties: Mary E. CUMMINGS, Plaintiff, v. WALSH CONSTRUCTION CO., Defendant.
• Court: U.S. District Court — Southern District of Georgia

561 F. Supp. 872

Mary E. CUMMINGS, Plaintiff, v. WALSH CONSTRUCTION CO., Defendant.

Civ. A. No. CV 181-218.

United States District Court, S.D. Georgia, Augusta Division.

March 31, 1983.

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Charles L. Wilkinson, III, Augusta, Ga., for plaintiff.

Michael C. Murphy, Charles W. Whitney, Hugh M. Davenport, Atlanta, Ga., for defendant.

ORDER

BOWEN, District Judge.

In this action, plaintiff Mary E. Cummings filed a five count complaint alleging in count one sexual discrimination and harassment and in Counts two through five various state tort claims. Jurisdiction is founded upon 42 U.S.C. § 2000e-5 for Count one and 28 U.S.C. § 1332, diversity of citizenship, for the state claims. As to all counts, defendant Walsh Construction Company (Walsh) filed a motion for summary judgment which is presently before the Court for resolution. For reasons of clarity and convenience, each count shall be discussed and ruled upon seriatim. Prefatory to the summary judgment analysis, a recitation of the allegations and undisputed facts will provide a useful historical backdrop.

Plaintiff was employed as a laborer by the defendant in April, 1980 on the night shift at the Plant Vogtle project until September, 1980. It is undisputed that plaintiff was not harassed or asked to engage in sex by anyone employed by defendant during this time. In September, she was transferred to the second shift along with all other female night shift workers. This transfer did not affect her salary.

Plaintiff's transfer placed her under the supervision of foreman Taylor Kelly and general foreman Robert Wilson. Sherman Odum was Walsh's general superintendent in charge of the second shift. While working on the second shift, plaintiff contends she was approached several times by Robert Wilson for sexual favors. She further alleges that Sherman Odum solicited her for oral sex on at least one occasion. Although for the most part she refused these advances, Ms. Cummings twice engaged in sexual activities with Robert Wilson, once at the Plant Vogtle construction site. She contends that she was intimidated by Wilson into this activity the first time. The second time, plaintiff submitted to Wilson's alleged advances because he promised her he would no longer bother her. Plaintiff contends that Wilson's advances continued although she rebuffed them. Because of her refusals, plaintiff alleges that Wilson and Odum required her to perform unpleasant and harsh tasks. On September 22, 1980, she was fired for failing to follow orders. Plaintiff disputes this reason, asserting the true reason was her filing a complaint of sex discrimination with the Equal Employment Opportunity Commission (EEOC) after she was transferred from the night shift to the second shift along with the other female workers on that shift. After her discharge, she filed a second EEOC charge alleging sexual discrimination in that she was fired because of her refusal to have sex with Robert Wilson.

Walsh denies that the plaintiff was ever sexually harassed, or approached for sexual favors by Wilson or Odum. Although it is undisputed that she had sex with Wilson on two occasions, defendant argues this was done voluntarily by the plaintiff and not because of any threat or intimidation. Walsh contends it has a strong policy against sexual discrimination and harassment in any form. Walsh employees were informed of this policy on two occasions and instructed to report such conduct to their superiors. Although plaintiff alleges she had complained to her foreman, Taylor Kelly, and another superior, Max Takchunk, defendant contends plaintiff did not file any complaints or notify Walsh of this alleged conduct until a grievance hearing was held regarding her December 22nd discharge. Moreover, defendant asserts that its employees did not harass plaintiff or purposely select her for harsh tasks. The defendant further asserts that such employees did not interfere with her constitutional rights, inflict emotional distress, engage in outrageous conduct towards her or invade her privacy. With this background in mind, the various claims raised by plaintiff will now be addressed.

COUNT I

The first count of the complaint is premised upon the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Section 2000e-2(a) states, in pertinent part:

(a) It shall be an unlawful employment practice for an employer —

(b)(1) ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's ... sex ...; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's ... sex ... Initially, defendant contended that Title VII did not recognize a claim of sexual harassment; that the challenged activity did not constitute a claim, if one were recognized; and that, if such a claim were cognizable under Title VII, plaintiff did not plead sufficient facts to state a claim. Although defendant has retreated from these positions in light of the Eleventh Circuit's holding in Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1982), it is not clear to what extent defendant has yielded. Thus, for the benefit and protection of the defendant, the Court will consider the defendant's earlier position, with regard to Count I, as still in force.

Defendant offers three arguments in support of summary judgment on Count I. First, Walsh contends that Title VII does not encompass claims of sexual harassment by employees unless it was condoned or sanctioned by the employer. Defendant argues that because of its firm policy against such conduct, it cannot be said to have countenanced such behavior. Defendant further argues that since sexual activity is not dependent upon one specific gender, the conduct is not proscribed by Title VII, which is directed to gender based discrimination.

The first argument is easily disposed of by the Henson holding. In Henson, a former police dispatcher, Barbara Henson, filed a Title VII action against the City of Dundee, Florida charging that she had to resign under duress from her dispatcher position because of the sexual harassment by the defendant's police chief. Henson alleged that the harassment created a hostile and offensive working environment for the female employees. She also alleged that she was threatened with discharge if she did not yield to the sexual requests being made, and that because of her refusal she was prevented from attending the police academy.

The court held that the creation of a hostile and offensive working environment because of sexual harassment is proscribed by Title VII, regardless of any tangible job detriment to the employee. Id. at 901. It was recognized that "terms, conditions or privileges of employment" encompass mental well-being on the job. The court found sexual harassment equally opprobrious as racial harassment, which is firmly prohibited. Acknowledging that not all sexual harassment rises to the level of a Title VII claim, the Eleventh Circuit delineated the elements a plaintiff must prove in order to prevail on a claim. These elements are:

(1) The employee belongs to a protected group.

(2) The employee was subject to unwelcome sexual harassment.

(3) The harassment complained of was based upon sex.

(4) The harassment complained of affected a "term, condition, or privilege" of employment.

(5) The harassment was either actively or constructively known by the employer who failed to take prompt remedial action.

Id. at 903-05.

Plaintiff has leveled allegations that if proven will satisfy the above criteria. She belongs to a protected group. She alleges events that are reasonably construed as unwelcome sexual harassment and were perpetrated because she was a female, as they were not directed towards male employees. With regard to this last element, it is noted that if the impugned conduct is directed to both sexes and is equally offensive, the conduct cannot be said to be based on gender. In other words, plaintiff must show that but for her gender the alleged activity would not have occurred. Id. at 904. As to the fourth element, if her allegations are established, the activity of plaintiff's supervisor would be sufficiently pervasive and severe to alter her working conditions by affecting her psychological well-being. Finally, plaintiff alleges that sexual harassment was so widespread and common at the Plant Vogtle site among defendant's supervisory personnel that constructive knowledge of the behavior can be inferred. Moreover, plaintiff avers she has complained to supervisory personnel without success. Thus defendant's first argument is without merit.

Defendant's second argument is that the plaintiff has not pled sufficient facts to state a claim. The gist of this argument is that she did not allege that the impugned conduct was undertaken strictly on the basis of her sex and was not required of the male employees. Viewing plaintiff's allegations in a favorable light, as is required on a summary judgment motion, and with the aid of the Henson decision, defendant's argument is without merit. Plaintiff's complaint portrays a classic scenario. It is patently obvious that the actions attributed to Wilson and Odum were taken because plaintiff is female. To require more precise pleading is to ignore the liberal pleading philosophy of the Federal Rules of Civil Procedure.

In its third argument, defendant takes the position that the alleged actions of Wilson and Odum are insufficient to constitute a Title VII claim. Defendant asserts that any actions taken by Odum and Wilson were outside the scope of their employment. Also, off-color remarks and innuendos are part and parcel...