Johnson v. Hondo, Inc.

• Decision Date: 09 September 1996
• Docket Number: No. 95-C-866.,95-C-866.
• Citation: 940 F.Supp. 1403
• Parties: Craig S. JOHNSON, Plaintiff, v. HONDO, INC., a foreign corporation, d/b/a Coca-Cola Bottling Company of Wisconsin, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 1403

940 F.Supp. 1403

Craig S. JOHNSON, Plaintiff, v. HONDO, INC., a foreign corporation, d/b/a Coca-Cola Bottling Company of Wisconsin, Defendant.

No. 95-C-866.

United States District Court, E.D. Wisconsin.

September 9, 1996.

COPYRIGHT MATERIAL OMITTED

E. Campion Kersten, Kersten & McKinnon, Milwaukee, WI, for Plaintiff.

Bradford L. Livingston, David J. Rowland, Robert A. Kearney, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Defendant.

DECISION AND ORDER

WARREN, District Judge.

Now before the Court is defendant's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 in the above-captioned matter. The issue before the Court is whether same-sex harassment is cognizable under Title VII, and if so, whether the plaintiff has alleged a cause of action for same-sex harassment sufficient to withstand summary judgment. The Court concludes that same-sex harassment is cognizable under Title VII, however, the plaintiff's claims did not rise to the level required for actionable sexual harassment and were not gender-based. Moreover, the plaintiff has failed to raise a genuine issue of fact that he was terminated in retaliation for bringing harassment complaints against a co-worker. For the following reasons, the defendant's motion is GRANTED and this case DISMISSED.

I. PROCEDURAL BACKGROUND AND FINDINGS OF FACT

On May 15, 1972, defendant Hondo, Inc., doing business as Coca-Cola Bottling Company of Wisconsin (hereinafter "Coca-Cola"), hired plaintiff Craig Johnson ("Johnson") first as a production worker and then as a second shift "night loader." A night loader's duties include loading and unloading trucks operating a forklift and arranging cases of product according to customers' orders. Johnson continued working for Coca-Cola until his termination in 1993. Ollie Hicks ("Hicks"), Johnson's alleged sexual harasser, began working for Coca-Cola in 1988 as a night loader with Johnson at the company's Silver Spring facility. Both individuals worked the second shift in a 100% male work environment.

Johnson contends that Hicks began sexually harassing him in July, 1992. Johnson states Hicks persistently came up to him and would brush against him. Hicks would "grab and manipulate his crotch" and state "[g]onna [sic] get my dick sucked." (Johnson Aff. ¶ 35.) Johnson's claim of sexual harassment consists of repeated comments by Hicks directed toward Johnson, for example, "I'm going to make you suck my dick." Hicks also made comments about Johnson's girl-friend, stating that he would have her "suck his dick because she's got a nice ass." (Johnson Dep. at 90.) Johnson admits that he called Hicks a "punk" (referring to a prisoner's homosexual partner), "faggot," "fag" and "S.O.B." as a reaction and in response to Hicks' harassing comments. (Johnson Aff. ¶ 35.) Johnson also occasionally used profane language while at work. (Johnson Dep. at 43.) Hicks never physically touched Johnson, never threatened Johnson, never exposed himself to Johnson, never called Johnson at home or came to his home, and never sent him anything in writing. (Johnson Dep. at 107-08; Def.Statement of Undisputed Material Facts ¶ 42.)

On July 15, 1993, Hicks told another employee in Johnson's presence "I think I'm going to get my dick sucked tonight" and looked in a threatening manner at Johnson. (Johnson Aff. ¶ 42.) Johnson responded, "I'm sick of you fucking with me. What is your goddamn problem?" (Id.) Hick's made a "come on" motion with his fingers and said, "Across the street, across the street." Johnson responded, "No, let's talk about it now," but eventually agreed to go across the street during the lunch hour. (Id. at ¶ 43.) Johnson and Hicks drove their cars off the company premises and across the street. Johnson stated, "Why are you fucking with me, what's the problem, because I want this stopped now." (Id. at ¶ 45.) Hicks reached into his truck and grabbed a car jack (the long steel vertical part of a car jack) and "came at" Johnson. Johnson reached into his car trunk and pulled out a baseball bat. Both men exchanged blows. Hicks landed on his back and Johnson continued to strike Hicks several times on the legs. Hicks went to the hospital in an ambulance and Johnson returned to work.

Coca-Cola's harassment policy, distributed in 1991, states that "[a]ny employee who feels that he/she has been harassed has a responsibility to bring it to the attention of his or her department head and the Human Resources Department." During the period of harassment by Hicks, Johnson repeatedly complained to his supervisors. On May 27, 1993, Johnson complained to Mike Schroeder, Coca-Cola's Director of Operations, about Hicks' behavior. Schroeder and warehouse manager John Starich, Johnson's supervisor, interviewed a number of employees, including Hicks, and Hicks left Johnson alone for approximately three weeks. Nonetheless, Hicks resumed his harassing conduct. Johnson never filed a complaint with the Department of Human Resources because according to Johnson, Human Resources personnel were not at the plant during his shift. (Johnson Aff. ¶ 56.)

Both Johnson and Hicks were suspended pending the results of Coca-Cola's investigation of the fight. Upon completing its investigation, Coca-Cola terminated both Johnson and Hicks for their involvement in the fight. Johnson was terminated by Coca-Cola for violating three rules of conduct, the foremost of which prohibited striking another employee. Johnson concedes that he struck Hicks, but believes that he was discharged for "opposing and complaining" about Hicks' behavior. (Johnson Aff. ¶ 63.)

Johnson filed a complaint in Milwaukee County Circuit Court on July 17, 1995. On August 18, 1995, Coca-Cola removed the case to federal court pursuant to 28 U.S.C. § 1441. Johnson's original complaint alleged six causes of action: (1) malicious prosecution (count I); (2) assault and battery (count II); (3) intentional infliction of emotional distress (count III); (4) invasion of privacy (count IV); (5) negligent retention and supervision (count V); and (6) sexual harassment (count VI). On January 12, 1996, this Court dismissed count I for failure to adequately allege a claim for malicious prosecution. Furthermore, the Court concluded that the Wisconsin Worker's Compensation Act barred the plaintiff's common law tort claims against Coca-Cola and dismissed counts II, III, IV and V. The defendant, Coca-Cola, has now filed a motion for summary judgment on Johnson's remaining sexual harassment and retaliation claim (count VI), which is fully briefed and ready for resolution. This Court has jurisdiction by reason of the federal question raised in plaintiff's complaint under 28 U.S.C. § 1331 and diversity of citizenship under 28 U.S.C. § 1332(a)(1). Venue in this Court is based on 28 U.S.C. § 1391(b).

II. STANDARD OF REVIEW

Summary judgment is no longer disfavored under the Federal Rules of Civil Procedure. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) ("Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole which are designed `to secure the just, speedy and inexpensive determination of every action.'"). Indeed, Federal Rule of Civil Procedure 56 requires a district court to grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; the requirement is that there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). For a dispute to be genuine, the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Id. For the fact to be material, it must relate to a disputed matter that "might affect the outcome of the suit." Id.

The party moving for summary judgment bears the initial burden of showing that there are no material facts in dispute and that judgment should be entered in its favor. Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 148 (7th Cir.1994); Hannon v. Turnage, 892 F.2d 653, 656 (7th Cir.), cert. denied, 498 U.S. 821, 111 S.Ct. 69, 112 L.Ed.2d 43 (1990). A defendant moving for summary judgment may satisfy this initial burden by pointing to a plaintiff's failure to introduce sufficient evidence to support each essential element of the cause of action alleged. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514; Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-53. A party opposing a properly supported summary judgment motion "may not rest upon mere allegations or denial," but rather must introduce affidavits or other evidence to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552; Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir.1990). "If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed. R.Civ.P. 56(e).

In evaluating a motion for summary judgment, the Court must draw all inferences in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir.1989). "However, we are not required to draw every conceivable inference from the record — only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991) (citations omitted.) A "metaphysical doubt" with respect to the existence of a genuine issue of triable fact is not enough to preclude...