Kimsey v. Akstein

Decision Date30 December 2005
Docket NumberNo. 104CV1001WSDCCH.,104CV1001WSDCCH.
Citation408 F.Supp.2d 1281
PartiesDanyle Prichard KIMSEY, Plaintiff, v. Ricardo B. AKSTEIN, M.D., and Akstein Eye Center, P.C., Defendant.
CourtU.S. District Court — Northern District of Georgia

Bruce R. Millar, Millar Mixon and Hunt, Jonesboro, GA, William M. Ordway, Office of William M. Ordway, Atlanta, GA, for Plaintiff.

David W. Long-Daniels, Ernest L. Greer, Amanda S. Thompson, Greenberg Traurig, Atlanta, GA, for Defendants.

ORDER

DUFFEY, District Judge.

This matter is before the Court on the Report and Recommendation issued by Magistrate Judge Hagy [78]. Because no objections to the Report and Recommendation have been filed, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). After careful review, the Court finds no plain error in the Magistrate Judge's factual or legal conclusions.

Accordingly,

IT IS HEREBY ORDERED that the Court ADOPTS AS ITS ORDER the Magistrate Judge's Report and Recommendation. Defendants' Motion for Partial Summary Judgment [49] is GRANTED IN PART and DENIED IN PART. Defendants' motion is GRANTED as to (i) all Title VII claims against Dr. Akstein; (ii) Title VII claims for constructive discharge sexual harassment, constructive discharge gender discrimination and gender discrimination against Defendant Akstein Eye Center, P.C.; and (iii) state-law claims for intentional infliction of emotional distress and failure to maintain a safe working environment against both Defendants. Defendants' motion is DENIED with respect to Plaintiff's claim for hostile work environment against Defendant Akstein Eye Center, P.C. Accordingly, Counts I, II, IV, V and VI of Plaintiff's Complaint are DISMISSED as to both Defendants and Count III is DISMISSED as to Defendant Ricardo B. Akstein only.

SO ORDERED.

REPORT AND RECOMMENDATION IN AN EMPLOYMENT DISCRIMINATION ACTION

HAGY, United States Magistrate Judge.

Plaintiff filed the above-styled civil action on April 13, 2004. She claims that Defendant discriminated against her on the basis of her sex and subjected her to sexual harassment, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. She also asserts state law claims of intentional infliction of emotional distress; failure to maintain a workplace free from unwanted misconduct, sexual harassment, and gender discrimination; false imprisonment, and battery. Plaintiff seeks punitive damages for Defendants' allegedly willful conduct.

The action is presently before the Court on Defendants' Motion for Partial Summary Judgment ("Motion for Summary Judgment" or "MSJ") [49]1 and on Defendants' Motion to Strike Portions of Plaintiff's Initial Disclosures and to Exclude Witnesses ("Motion to Strike") [52]. In their Motion for Summary Judgment, Defendants seek summary judgment on Plaintiff's Title VII claims (Counts I through IV of her Complaint ("Compl.")), Plaintiffs' state law claims for intentional infliction of emotional distress and failure to maintain a safe working environment claim (Counts V and VI of her Complaint), and Plaintiff's request for punitive damages asserted as to her Title VII claims. For the reasons discussed below, the undersigned RECOMMENDS that Defendant's Motion be GRANTED IN PART AND DENIED IN PART.

I. SUMMARY OF DECISION AND RECOMMENDATION

Defendants seek summary judgment on Plaintiff's Title VII claims (Counts I-IV), including her request for punitive damages for those counts, as well as on her state law claims for intentional infliction of emotional distress (Count V) and for an unsafe work environment (Count VI). The Court finds that Defendant Ricardo Akstein, M.D. ("Dr. Akstein" or "Akstein"), as an individual, cannot be liable under Title VII, and that Plaintiff's Title VII claims (Counts I-IV) can be stated against only her employer, Akstein Eye Center, P.C. (the "Eye Center"). Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment be GRANTED on that ground and that all Title VII claims against Dr. Akstein be DISMISSED.

As for the claims remaining against the Eye Center, the Court finds that Plaintiff's allegations of sexual harassment which created a hostile work environment included an incident within six months prior to the filing of her July 29, 2003 EEOC charge, and therefore, all incidents of sexual harassment alleged, including those acts occurring more than 180 days before the EEOC charge, were timely raised in that charge. Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment, insofar as it is based on out-of-time claims, be DENIED.

Next, the Court finds that a fact question exists as to whether the alleged sexual harassment perpetrated by Dr. Akstein against Plaintiff was severe or pervasive enough to have altered the terms and conditions of her employment at the Eye Center. Furthermore, regardless of whether Plaintiff availed herself of the procedures in place to report sexual harassment, the Court finds that the Eye Center can be held vicariously liable for the actions of its principal and alter ego, Dr. Akstein. Accordingly, the Court finds that Plaintiff's sexually hostile work environment claim (Count III) may stand, and RECOMMENDS that Defendants' Motion for Summary Judgment on this claim be DENIED and that this claim remain as to Defendant the Eye Center.

Notwithstanding this conclusion, the Court finds that Plaintiff has not presented a genuine issue of material fact in support of her claim that she was constructively discharged, and therefore, her constructive discharge sexual harassment claim (Count I) fails. For this reason, and because she has failed to point to similarly situated male employees treated more favorably than she was, her constructive discharge gender discrimination claim (Count II) also fails. Finally, Plaintiff's remaining Title VII claim, which she alleges is based on "gender discrimination without tangible employment action" (Count IV), fails for these reasons as well as because it is not a recognized cause of action. Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment on Counts I, II, and IV be GRANTED, and that these claims be DISMISSED against both Defendants.

As to that portion of Defendants' motion seeking a ruling on Plaintiff's request for punitive damages under Title VII, the Court finds that, because her sexually hostile work environment claim stands, and because of fact issues as to intent, the Court should not determine whether punitive damages are warranted at this time.

As for Plaintiff's state law claims, Defendant has moved for summary judgment on Plaintiff's intentional infliction of emotional distress claim (Count V) and on her unsafe workplace claim (Count VI). The Court finds that the actions as alleged against Defendants are not sufficiently outrageous to satisfy the standards of intentional infliction of emotional distress under Georgia law, and therefore, this claim fails. In addition, the Court finds that Plaintiff cannot state a claim for an unsafe workplace for allegations amounting to emotional distress, and therefore, that this claim fails as well. Accordingly, the Court RECOMMENDS that Counts V and VI of Plaintiff's Complaint be DISMISSED against both Defendants.

II. BACKGROUND FACTS

Unless otherwise indicated, the Court draws the undisputed facts from Defendants' Separate "Statement of Material Undisputed Facts" ("SMF"). Plaintiff has filed a response to Defendants' SMF, in which she denies SMF ¶¶ 6-10, 18-19, 22-24, 26, 31, 32, 41, 44, 47, 52, 54, 59, and 61-64. Plaintiff, however, has not cited to any evidence in the record controverting Defendants' material facts. According to Local Rule 56.1B.(2)(a)(2), "[t]his Court will deem each of the movant's facts as admitted unless the respondent: (i) directly refutes the movant's facts with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant's fact; or (iii) points out that the movant's citation does not support the movant's fact or that the movant's fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1B.(1)." LR 56.1B.(2)(a)(2), NDGa.

Instead, Plaintiff has included a discussion of the facts in her Brief, which apparently is intended to dispute portions of Defendants' facts. See Plaintiff's Memorandum in Support of her Response to MSJ ("Pl.'s Br.") at 4-13. Local Rule 56.1B.(2)(a)(1), however, states specifically that a "response shall contain individually numbered, concise, non argumentative responses corresponding to each of the movant's numbered undisputed material facts." LR 56.1B.(2)(a)(1), NDGa. Further, this response must be in a separate document filed "with the responsive brief." LR 56.1.B(2), NDGa (emphasis added).

Even if the Court were to construe Plaintiff's discussion of the facts in her Brief as responses to Defendants' material facts, Plaintiff has still failed to respond to many of Defendants' material facts in that discussion, and it is difficult for the Court to discern which facts Plaintiff controverts and, as a result, which facts are in genuine dispute.

Finally, the Court notes that Plaintiff has repeatedly mis-cited the record in the statement of facts in her Brief, either to put a more favorable "spin" on the evidence, or out of carelessness. For example, on pages 7 and 8 of her Brief, Plaintiff alleges that "[w]hen Mrs. Kimsey complained to supervisor Linda Bunch about Akstein's sexual misconduct toward her, Bunch told Danyle that she wasn't woman enough to work in the work force, and maybe that's what's wrong, and told her not to be left alone with Dr. Akstein." In support of this statement, Plaintiff cites to page 178 of Bunch's deposition and to ...

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    • U.S. District Court — Middle District of Georgia
    • March 31, 2020
    ...which retaliation included subjecting her to abuse by her supervisor and causing her severe emotion pain[.]"); Kimsey v. Akstein, 408 F. Supp. 2d 1281, 1288-89 (N.D. Ga. 2005) (no intentional infliction of emotional distress where employee alleged doctor touched her breasts on two occasions......
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    ...inappropriate touching with unwelcome, sexual remarks may be sufficient evidence of sexual harassment. See, e.g. , Kimsey v. Akstein , 408 F.Supp.2d 1281, 1298 (N.D. Ga. 2005) (denying summary judgment where there was "a pattern of less severe verbal harassing and touching that, viewed in i......

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