Fuller v. Koch Foods, Inc.

• Decision Date: 12 July 2019
• Docket Number: Case No. 2:17-cv-96-ALB
• Parties: ROBERT HARVEY FULLER, Plaintiff, v. KOCH FOODS, INC., et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

ROBERT HARVEY FULLER, Plaintiff, v. KOCH FOODS, INC., et al., Defendants.

Case No. 2:17-cv-96-ALB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

July 12, 2019

MEMORANDUM OPINION AND ORDER

This is an employment discrimination lawsuit between Robert Fuller ("Plaintiff"), his former employer, Koch Foods of Alabama, LLC, his former employer's related company, Koch Foods, Inc., and his former co-worker, Melissa McDickinson. This matter comes before the court on the following motions: Defendant McDickinson's Motion for Summary Judgment (Doc. 148); Defendant Koch Foods of Alabama, LLC's Motion for Summary Judgment (Doc. 158); Motion for Summary Judgment by Koch Foods, Inc., as to Plaintiff's Claims (Doc. 165); and Defendant Koch Foods, Inc., and Koch Foods of Alabama, LLC's Objections to and Motion to Strike Portions of Plaintiff's Evidentiary Submission in Support of His Opposition to Defendant's Motion for Summary Judgment (Doc. 204). The respective motions have been fully briefed and are ripe for decision.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is conferred by 28 U.S.C. § 1331 as to Plaintiff's federal causes of action, and the Court may exercise supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367. The parties do not contest personal jurisdiction or venue, and there are adequate allegations to support both. See 28 U.S.C. § 1391.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). The Court views the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for the motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id. Alternatively, a movant who does not have a trial burden of production can assert, without citing the record, that the nonmoving party "cannot produce admissible evidence to support" a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee's note ("Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials.... [A] party who does nothave the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact.").

If the movant meets its burden, the burden shifts to the nonmoving party to establish - with evidence beyond the pleadings - that a genuine dispute material to each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).

III. BACKGROUND

Defendant Koch Foods of Alabama, LLC ("Ala-Koch") is a chicken processing facility in Montgomery, Alabama. Koch Foods, Inc. ("Koch Foods") owns Ala-Koch and several other processing facilities. On behalf of Ala-Koch, Complex Human Resources ("HR") Manager David Birchfield hired Defendant Melissa McDickinson as a HR Supervisor in 2014, and later promoted her to HR Manager of the debone plant.

On February 9, 2015, a temporary staffing agency assigned Plaintiff to work at Ala-Koch as a temporary employee in the HR department at the Ala-Koch debone plant. On March 9, 2015, McDickinson hired Fuller as a full-time Ala-Koch employee to work under her supervision. During the course of his employment withAla-Koch, Plaintiff alleges that McDickinson sexually harassed him by kissing him, touching his chest, placing her breasts on him, requesting sexual favors, suggesting that he leave his family for her, asking him to sit in her lap, calling him at home at inappropriate times, and making sexual comments to him when she visited a bar that Plaintiff owned and operated. Plaintiff alleged that he was afraid to report the sexual harassment to Birchfield because he had heard that Birchfield and McDickinson were in a sexual relationship. In May 2015, Plaintiff sent an email to Birchfield and McDickinson reporting a claim of racial discrimination which another employee had reported to him regarding disproportionate discipline received by African-American employees. Two days later, McDickinson terminated Plaintiff's employment on the basis that he had abandoned his employment while he was attending his son's elementary school graduation during his lunch break.

Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on October 9, 2015, alleging race discrimination, sexual harassment, and retaliation. The EEOC issued a Notice of Right to Sue letter to Plaintiff on February 27, 2017. Plaintiff filed a Complaint in this court on February 16, 2017. In the Third Amended Complaint, Plaintiff averred the following counts:

Count I - Invasion of Privacy.

Count II - Assault and Battery.

Count III - Outrage.

Count IV - Negligent/Wanton Supervision, Training and Retention against Koch Foods and Ala-Koch.

Count V - Retaliation against Defendants Koch Foods and Ala-Koch arising under Title VII of the Civil Rights Act of 1964, as amended ("Title VII").

Count VI - Retaliation against Defendants Koch Foods and Ala-Koch arising under 42 U.S.C. §1981 of the Civil Rights Act of 1964, as amended ("1981").

Count VII - Sexual Harassment against all Defendants under Title VII. Count VIII - Race Discrimination against Defendant Koch Foods and Ala-Koch under Title VII and 1981.

Count IX - Gender Discrimination against Defendant Koch Foods and Ala-Koch under Title VII.

Each of the Defendants have filed motions seeking summary judgment. The motions of the respective Defendants will be addressed below.

IV. DISCUSSION

A. Claims against McDickinson

Only the first three state-law claims for Invasion of Privacy, Assault and Battery, and Outrage are stated against McDickinson.

As to Invasion of Privacy, Plaintiff argues that "McDickinson's conduct invaded Fuller's personal and emotional sanctum by physically touching him and subjecting him to overtly sexual comments." (Doc. 194 at 4). The Eleventh Circuit has held that:

As to the invasion of privacy and intentional infliction of emotional distress claims, a plaintiff in Alabama must show that the defendant's conduct was so outrageous that it caused the plaintiff mental suffering, shame, or humiliation (for invasion of privacy) or that it cannot be tolerated in a civilized society (for intentional infliction). McIsaac v. WZEW-FM Corp., 495 So. 2d 649, 651 (Ala. 1986).

Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1308-09 (11th Cir. 2007). The Alabama Supreme Court has described the tort of Invasion of Privacy "as the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. Phillips v. Smalley Maintenance Services, 435 So. 2d 705 (Ala. 1983); Restatement (Second) of Torts § 652B (1977)." McIsaac, 495 So. 2d at 651. That court further noted that "'Even the dire affront of inviting an unwilling woman to illicit intercourse has been held by most courts to be no such outrage as to lead to liability.' Logan v. Sears, Roebuck & Co., supra, at 124; W. Prosser, Law of Torts, 54-55 (4th ed. 1971)." McIsaac, 495 So. 2d at 652.

Here as in McIsaac, even construing the allegations in the light most favorable to Plaintiff, "the alleged intrusion and examination into [Plaintiff]'s private concerns fall short of that required to constitute this tort." Id. When asked if Plaintiff "ever [felt] physically threatened by any of Ms. McDickinson's actions towards [him]," Plaintiff clarified the question by asking, "Physically threatened as in physical danger or harm to myself?" and responded, "no." (Doc. 149-5 at 114). Accordingly, McDickinson's motion for summary judgment is due to be granted on Plaintiff's claim for Invasion of Privacy.

Plaintiff's claim of the tort of Outrage falls similarly short. The Alabama Supreme Court has held:

To be actionable under the tort of outrage, the conduct involved must be "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and ... be regarded as atrocious and utterly intolerable in a civilized society." American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980) (citing Restatement (Second) of Torts § 46, Comment d., at 73 [1965] ).

McIsaac, 495 So. 2d at 652. Even viewing the allegations in this case in the light most favorable to the Plaintiff, McDickinson's "behavior extended to 'mere insults, indignities, threats [or] annoyances,' for which the law will not hold one liable in tort. Restatement (Second) of Torts § 46, Comment d., (1965); Logan v. Sears, Roebuck & Co., 466 So. 2d 121 (Ala. 1985)." McIsaac, 495 So. 2d at 651. Sexual harassment is not a tort under Alabama state law. Accordingly, McDickinson's motion for summary judgment is due to be granted as to the claim of Outrage.

Finally, Plaintiff asserts a claim of assault and battery against McDickinson. "The plaintiff in an action alleging assault and battery must prove '(1) that the defendant touched the plaintiff; (2) that the defendant intended to touch the plaintiff; and (3) that the touching was conducted in a harmful or offensive manner.'" Harper v. Winston County, 892 So. 2d 346, 353 (Ala. 2004) (citation omitted). It is well-established that "[a]n actual injury to the body is not a necessary element of a civil assault and battery." Surrency v. Harbison, 489 So. 2d 1097, 1104 (...