Furcron v. Mail Ctrs. Plus, LLC

Decision Date16 December 2016
Docket NumberNo. 15-14595,15-14595
Citation843 F.3d 1295
Parties Myra Furcron, Plaintiff–Appellant, v. Mail Centers Plus, LLC, Defendant–Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Lisa Catherine Lambert, Law Office of Lisa C. Lambert, John Stephen Mixon, Alex Ray Roberson, Millar & Mixon, PC, Atlanta, GA, for PlaintiffAppellant.

Chandra Cain Davis, The Employment Law Solution: McFadden Davis, LLC, Jamala S. McFadden, McFadden White Sprattlin & Davis, LLC, Atlanta, GA, for DefendantAppellee.

Before ROSENBAUM and JILL PRYOR, Circuit Judges, and SCHLESINGER,* District Judge.

SCHLESINGER, District Judge:

Myra Furcron ("Furcron") appeals an adverse summary judgment granted in favor of Mails Centers Plus, LLC ("MCP") on Furcron's claims of sexual harassment and retaliation. In addressing Furcron's sexual harassment claim, the district court found that Furcron failed to produce sufficient evidence that the alleged harassment was based on sex. On the retaliation claim, the district court found that Furcron failed to demonstrate that she engaged in protected activity and that Defendant's defense was a pretext for her termination. We vacate and remand in part, and affirm in part.

I. BACKGROUND
A. Facts1

MCP is a business services provider specializing in a broad range of facilities and administrative support activities for mid-sized and large corporations. One of MCP's largest clients is the Coca-Cola Company—the site of the workplace where the majority of the events surrounding the facts of this case occurred. Furcron was hired by MCP in 2008 to work as a mailroom clerk. In 2010, she was transferred to Coke Receiving (the "KOR")—located on Coca-Cola's property in Atlanta, Georgia—where employees are responsible for receiving and sorting inbound mail and small packages throughout that work site. Daniel Seligman is the co-worker at KOR that Furcron alleges harassed her. Seligman was hired in 2011, also as a mailroom clerk. On November 27, 2012, for reasons that are disputed, Seligman was transferred to Furcron's work area. The events taking place between the day of Seligman's transfer to the KOR and the day of Furcron's termination, December 7, 2013, are the subject of the present dispute.

Seligman suffers from Asperger's syndrome, and the complications associated with the disorder have led to some difficulties for him in the workplace. Seligman often exhibits mannerisms that are generally considered awkward and inappropriate, including staring, brushing up against employees, and talking in people's faces. For instance, before his transfer to the KOR, an employee observed Seligman undressing in a workplace restroom. On another occasion, Seligman and another employee were discussing movies when Seligman, upon walking past a credit union, hypothesized about a movie scene where someone robbed a credit union. In a third incident, Seligman was observed in the workplace lobby acting strangely when another employee thought she overheard him say the word "kill." According to MCP, these incidents were all investigated, and no disciplinary action was necessary.

Perhaps the most significant incident concerns the circumstances of Seligman's transfer from Coca-Cola's mailroom to KOR. According to Furcron, MCP transferred Seligman to KOR after Seligman began to visit a female assistant in her office on a daily basis, distracting the assistant from her job. Furcron states that, in May of 2012, Seligman was counseled by Roger Maloney, co-manager of the KOR and Furcron's supervisor, to stay away from the assistant's work area. Later that year, in November, Seligman was again counseled by another supervisor that his actions towards the assistant were inappropriate. A short time after the second counseling, the assistant complained, which seems to have precipitated Seligman's transfer. The assistant's complaint, in Furcron's words, concerned Seligman's frequent visits to the assistant's work area, and her apprehension that it might be perceived as interfering with her job. Allegedly, Seligman would later tell Furcron that he was transferred for "stalking women in the parking lot."

MCP disputes the reasons for Seligman's transfer. While acknowledging Seligman had been counseled previously for his behavior, according to Ronald Davie (MCP's director of human resources), the assistant's complaint was out of concern for Seligman's well-being. As Seligman did not understand when to stop engaging individuals, the decision to transfer Seligman, Davie suggests, was to limit Seligman's "downtime." In any case, Seligman was transferred and began working in the KOR on November 27, 2012.

Furcron initially attempted to befriend Seligman, in order to ease his adjustment to the KOR. She believes Seligman mistook her friendly demeanor for flirtation. During their six days working together, Furcron said Seligman frequently entered her work area and invaded her personal space. At other times, she said Seligman stared at her from afar. He also allegedly attempted to look down Furcron's shirt and at her underwear when she bent over. Another female employee, Tameka Johnson, who worked with Seligman during the same period as Furcron, gave testimony that Seligman would look at Johnson's breasts and her buttocks when she bent over.

Furcron observed that Seligman frequently ("on a daily basis") exhibited an erect penis while staring at her. More significantly, she said Seligman would deliberately bump and rub his erection against her. A co-worker, Sam Fortson, witnessed Seligman's state of arousal around Furcron, as well as the intentional bumping and rubbing. Fortson also observed Furcron crying because she had to work with Seligman.

Furcron did not initially complain to her managers, even though Seligman's actions made her uncomfortable and diminished her job performance, because she recognized Seligman's condition may have affected his behavior. However, Furcron did make her concerns known to Seligman, and Seligman appeared to understand. Nevertheless, the behavior continued, and ultimately Furcron complained to her supervisor, Maloney, about Seligman. She told Maloney she felt uncomfortable working around Seligman because he stared at her, invaded her personal space, and bumped and rubbed against her with an erection. Maloney's alleged response was that Seligman meant no harm, and that his conduct should be tolerated because of his disability. Furcron complained to Maloney on subsequent occasions, but Maloney refused to take action, claiming Seligman "had friends in high places at Coca-Cola, and it was out of his hands."

On November 30, 2012—three days after Seligman's transfer—Furcron took a picture of Seligman from the neck down, to prove to Maloney that Seligman "exhibited an erection in the workplace." Furcron explained that she did not take the photo to embarrass Seligman, but only to support her claim of sexual harassment. Furcron also showed the photograph to several co-workers, but when she did so is disputed. MCP claims that the photograph was shown to at least three non-management employees prior to Furcron approaching management. Furcron admits that she approached several female co-workers with the photograph, but only after showing the photograph to Maloney and receiving no response, and only to "make management take her complaints seriously."

Whatever the case, Furcron complained to Maloney about Seligman on December 3, 2012—according to MCP, for the first time. She says Maloney was dismissive, and laughed in response to being shown the photograph of Seligman's erection. She then requested to file a formal complaint with Human Resources ("HR"), and Maloney agreed to contact and report the complaint to HR on her behalf. According to MCP, immediately after this meeting, Maloney attempted to contact Davie (who was unavailable) but did contact Michael Wright, Senior Manager of Operations, to report the photograph and Furcron's statement that Seligman had an erection. Maloney's notice prompted an immediate investigation, but Furcron claims that she never received a response from HR after her complaint to Maloney.

The next day Furcron met with Wright, and later that day, with Vandrena Armstrong (also a manager), to discuss the photo and her concerns. Both managers allegedly reacted with laughter, and Armstrong responded that Seligman "was always like that."

The following day, December 5, 2012, Furcron sent an email to HR and two other MCP managers. In her short email, Furcron explained that she feared for her safety and needed to speak with someone as soon as possible. The majority of the email references the incidents prior to Seligman's transfer to the KOR. Furcron was clear that Seligman had a constant erection which caused her to be "very uncomfortable." Shortly after Furcron sent the email, Maloney told her not to show the photograph to anyone.

The same day Furcron met with Wright and Davie. Furcron said the purpose of the meeting was to discuss "her trying to show a picture of Seligman to Wright." Furcron repeated her concerns with Seligman to both managers, but neither had much interest in what Furcron had to say. Instead, they were interested in the photograph of Seligman. In Furcron's deposition, however, she testified that she did not say anything at all about Seligman during the meeting; she also stated, however, that (after turning over the photograph) she tried to speak to Wright and Davie, but was not allowed to.

At the conclusion of the meeting, Furcron was suspended. Furcron says she was suspended to allow MCP to conduct an investigation, and was told that she could not to return to work until MCP contacted her. According to MCP, Furcron was suspended because she took an inappropriate photograph and admitted to showing it around the workplace, and because Furcron planned to show the photograph to other employees, in spite of her managers' instructions not to. MCP claims that Furcron was instructed, at the December 5th meeting, not to discuss her complaint...

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