Degitz v. Southern Management Services, Inc.
| Decision Date | 10 March 1998 |
| Docket Number | No. 97-1384-CIV-T-17.,97-1384-CIV-T-17. |
| Citation | 996 F.Supp. 1451 |
| Parties | Joey L. DEGITZ, and Robert Degitz Plaintiffs, v. SOUTHERN MANAGEMENT SERVICES, INC., d/b/a Freedom Village Nursing Center and Inn, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Thomas P. Flynn, Legler & Flynn, Bradenton, FL, for Plaintiffs.
Sandra Lynn Fanning, Macfarlane, Ferguson & McMullen, Tampa, FL, James Addison Martin, Jr., Macfarland Ferguson & McMullen, Clearwater, FL, Daniel H. Kunkel, Kunkel, Miller & Hament, Sarasota, FL, for Defendants.
Ronda R. Storms, Ronda R. Storms, P.A., Tampa, for Lotus H. Elliott, Helen C. Elliott, appellants.
Joryn L. Jenkins, Law Office of Joryn L. Jenkins, Tampa, for Melvin Joseph Hancock, Sr., appellees.
This cause comes before the Court on Defendant, Southern Management Services, Inc.'s, ("Defendant") Motion for Summary Judgment and Supporting Memorandum of Law (Docket No. 12), Defendant's Statement of Undisputed Facts in Support of Defendant's Motion for Summary Judgment (Docket No. 13), Depositions of Phillip E. Harper, Jill Dengl West, Robert Pelmear, and Estrella Flores (Docket No. 17), and Plaintiffs' Reply and Memorandum in Opposition to Defendant's Motion for Summary Judgment, with exhibits (Docket No. 15).
In its motion, Defendant asserts that summary judgment is appropriate with regards to: (1) Plaintiff, Joey Degitz', hostile work environment sexual harassment claim under Title VII and Florida Civil Rights Act of 1992 (FCRA) (Count I); (2) Plaintiff, Joey Degitz', claim for battery (Count II); (3) Plaintiff, Joey Degitz', claim for negligent hiring and retention (Count III); and (4) Plaintiff, Robert Degitz', claim for loss of consortium (Count IV). Summary judgment is granted in part and denied in part.
Plaintiffs' claims derive from Plaintiff, Joey Degitz', employment with Freedom Village Nursing Center and Inn ("Freedom Village"), as an Administrative Assistant to Mr. Kirk A. Copley ("Copley"). Plaintiff, Joey Degitz, began working for Freedom Village as a certified nursing assistant prior to accepting the position with Mr. Copley. Plaintiff, Joey Degitz, asserts that beginning in March, 1995, Mr. Copley, her supervisor, began subjecting Plaintiff to inappropriate sexual remarks and sexually explicit jokes. Plaintiff, Joey Degitz, describes specific instances where Mr. Copley made sexual advances, rude comments, and unwanted physical contact with her during business hours and at a company function.
This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact, when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 995-97 (5th Cir.1979), (quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969)). Material factual disputes preclude summary judgment.
The United States Supreme Court, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), held:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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.
Id. 477 U.S. at 322. Moreover, the Court stated, "Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing there is a genuine issue for trial.'" Id. at 324.
As the district court in Coghlan v. H.J. Heinz Co., 851 F.Supp. 808 (N.D.Tex.1994), summarized:
Although a court must "review the facts drawing all inferences most favorable to the party opposing the motion," ... the nonmovant may not rest on mere allegations or denials in its pleadings; in short, "the adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial." However, merely colorable evidence or evidence not significantly probative will not defeat a properly supported summary judgment ... The existence of a mere scintilla of evidence will not suffice...
Id. at 810-11 (citations omitted). Issues of fact are "`genuine' only if a reasonable jury considering the evidence presented could find for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Defendant asserts that Plaintiff, Joey Degitz', state law claim is barred because under FCRA §§ 760.07, .10 & .11, Fla. Stat. (1995), she must first exhaust her administrative remedies prior to filing the instant suit. As a precondition to bringing an action under the FCRA, a plaintiff must: (1) file a timely complaint with the Florida Human Rights Commission ("Commission"); and (2) either obtain (i) a reasonable cause determination, or (ii) wait for the 180 day time period to expire for the Commission to make a reasonable cause determination or conciliate the matter.
Plaintiff, Joey Degitz, alleges that she filed her charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on March 4, 1996, and again on March 28, 1996, and that the charge was received by the EEOC on or about April 2, 1996. Defendant argues that Plaintiff, Joey Degitz, fails to allege, and her EEOC charge does not reflect, that she ever filed a charge or complaint with the Commission. Defendant argues that, although Plaintiff's March 28, 1996 charge identifies the Florida Commission to be the appropriate investigating state agency, Plaintiff filed the charge with the EEOC and did not mark the box requesting that the charge be dually filed with the state agency. Moreover, Defendant argues that Plaintiff's state law claim is barred even though the Commission actually received the charge. Defendant maintains, absent dual filing, the Commission had 180 days from its receipt of the charge to conduct its own investigation and Plaintiff did not wait the prescribed period before filing suit in August, 1997.1
Plaintiff asserts that she filed a complaint with the Commission in March of 1996. Plaintiff explains that no action or determination was made; therefore, the instant suit was ripe 180 days after March, 1996. Plaintiff has provided a copy of her charge of discrimination where she listed the Commission as the state agency. However, as Defendant pointed out, Plaintiff did not check the box which indicates that the charge was to be filed with both the EEOC and the state agency. Nevertheless, Plaintiff has provided a copy of a letter, dated April 3, 1996, to the Commission from Plaintiff's attorney stating that two (2) copies of the Charge of Discrimination was enclosed.
Since Plaintiffs did not file the instant suit until June 2, 1997, the Commission could have received Plaintiff, Joey Degitz', charge as late as December, 1996, and the 180 days would have still run by June 2, 1997. Moreover, Plaintiff, Joey Degitz, attests that her formal charge of discrimination was served upon the Commission by the EEOC in March, 1996, and her attorney sent two (2) copies of the charge to the Commission in April, 1996. Therefore, the Court is satisfied that Plaintiff's 180 days have lapsed from the date the Commission received her charge and the precondition that the administrative remedies be exhausted, has been satisfied.2
In order to establish a prima facie case of hostile work environment sexual harassment, Plaintiff, Joey Degitz, must prove: (1) that she belongs to the protected group; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment complained of was based on sex; and (4) that the harassment complained of affected a term, condition, or privilege of employment in that it was sufficiently severe or pervasive to alter conditions of her employment and create an abusive working environment. See Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557 (11th Cir.1987). Defendant only disputes whether Plaintiff has satisfied the fourth element.
Defendant argues that Plaintiff asserts that she was sexually harassed by Mr. Copley for over nine months; however, she fails to establish that any term, condition, or privilege of her employment at Freedom Village was affected. Defendant points out that Plaintiff, Joey Degitz, continued her position as Administrative Aide, received pay increases, favorable evaluations, and had all of her requests for flex-time and paid personal days approved. Moreover, Defendant argues, Plaintiff never received threats to her job security. In addition, Defendant contends that Plaintiff's allegations of open and continuous harassment is discredited by the fact that no other employees noticed or witnessed such harassment.
Plaintiff argues that hostile work 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. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Moreover, Plaintiff argues that, in order to be actionable under Title VII, conduct giving rise to a hostile work environment does not have to consist of sexual advances or have clear sexual overtones. Conduct of a nonsexual nature that ridicules women or treats them inferior can constitute prohibited sexual harassment. See Sims v. Montgomery County Comm'n, 766 F.Supp. 1052, 1073 (M.D.Ala....
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