Martin v. Norfolk Southern Ry. Co.

• Decision Date: 23 May 1996
• Docket Number: No. CV-94-N-2928-S.,CV-94-N-2928-S.
• Citation: 926 F. Supp. 1044
• Parties: Edwin Berry MARTIN, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY; Preston Lee Thomasson, an individual; Robert F. Summerlin, an individual; Larry D. Hornbuckle, an individual, Defendants.
• Court: U.S. District Court — Northern District of Alabama

926 F. Supp. 1044

Edwin Berry MARTIN, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY; Preston Lee Thomasson, an individual; Robert F. Summerlin, an individual; Larry D. Hornbuckle, an individual, Defendants.

No. CV-94-N-2928-S.

United States District Court, N.D. Alabama, Southern Division.

May 23, 1996.

COPYRIGHT MATERIAL OMITTED

Stephen L. Poer, Beverly Poole Baker, Haskell Slaughter Young & Johnston, Birmingham, AL, for plaintiff.

Michael K. Beard, Sharon A. Woodard, Elizabeth S. Webb, Starnes & Atchison, Birmingham, AL, for Preston Lee Thomasson.

Gayle H. Gear, Birmingham, AL, for Robert F. Summerlin.

Douglas L. Key, Joseph E. Bulgarella, Key Frawley Bulgarella & Key, Birmingham, AL, for Larry D. Hornbuckle.

Barbara F. Olschner, Olschner & Hart, Birmingham, AL, for Allstate Insurance Company.

Crawford S. McGivaren, Jr., John Mark Graham, Cabaniss Johnston Gardner Dumas & O'Neal, Birmingham, AL, for Norfolk Southern Railway Company.

MEMORANDUM OF OPINION

EDWIN L. NELSON, District Judge.

I. Introduction.

Edwin Berry Martin brings this action against Norfolk Southern Railway Company ("Norfolk Southern"), and Preston Lee Thomasson, Robert F. Summerlin, and Larry D. Hornbuckle, individually, for injuries allegedly sustained as the result of an alleged course of sexual harassment which occurred while he was employed at Norfolk Southern's Norris Yard in Birmingham, Alabama. He makes claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51, et seq., and Alabama state law. Specifically, he claims that the defendants created a hostile work environment based on sexual harassment. He also alleges state law claims of outrage, invasion of privacy, and assault and battery against all defendants and a FELA claim against Norfolk Southern.

The court presently has for consideration the defendants' motions for summary judgment. The issues have been briefed and the motions are ripe for decision. Upon due consideration, the motions will be granted in part and denied in part.

II. Statement of Undisputed Facts.

On November 17, 1993, Edwin Berry Martin, ("Martin" or the "plaintiff"), was transferred from South Carolina to Norfolk Southern's Norris Yard in Birmingham, Alabama. At the time of his transfer he held the position of Mechanical Supervisor. In Birmingham, he worked in the diesel shop two nights a week on the third shift and three days a week on the second shift. Larry D. Hornbuckle, a general foreman, was Martin's immediate supervisor on the third shift. In addition, Martin worked with Hornbuckle for an hour during shift change on the three days of the week that he worked second shift. Preston Lee Thomasson worked under Martin's supervision on the third shift two nights a week. Robert F. Summerlin was a mechanical supervisor on the third shift. Summerlin and Martin worked together during shift change three days per week.

During the time they worked together, Martin claims that the defendants engaged in a course of sexual harassment against him. Specifically, Martin alleges the following:

(1) Hornbuckle and Summerlin offered to expose their penises to him;

(2) Hornbuckle and Summerlin asked him to show them his penis;

(3) Hornbuckle grabbed at and pinched him in and around his legs and posterior;

(4) Hornbuckle grabbed at or swatted towards his genitals;

(5) Hornbuckle made improper and inappropriate remarks about his girlfriend (6) Hornbuckle and Summerlin told him that he looked like he had AIDS;

(7) Hornbuckle called him and two other employees the "Three Muskequeers;"

(8) Hornbuckle told him that he was "pretty;"

(9) Hornbuckle told him that he would like to bend him over a chair and have sex with him;

(10) Hornbuckle wrapped a piece of computer paper around his head and fashioned it as a scarf;

(11) Hornbuckle threatened him that he would run him off the property if he did not "go along with him and his boys." He was referring to himself, Thomasson, and Summerlin;

(12) Thomasson grabbed at him on several occasions;

(13) Thomasson put him in a headlock on occasion;

(14) Thomasson tried to kiss him;

(15) Thomasson pinched him on occasion;

(16) Thomasson told him that he was "cute;"

(17) Thomasson stated that his girlfriend was ugly;

(18) Thomasson bent him over while Hornbuckle attempted to stick a broom handle into his anus. All three persons were fully clothed;

(19) Summerlin grabbed at him on several occasions;

(21) Summerlin asked him where he was getting his sex now; and

(22) Summerlin pulled his pants down in front of him, exposing a tattoo on his buttocks;

It is undisputed that Hornbuckle and Thomasson actually touched the plaintiff; Summerlin claims that he only grabbed at Martin and did not touch him. It is also undisputed that all three defendants made offensive comments to the plaintiff. Martin admits none of the defendants propositioned him to have sex with them. There is also no evidence that Martin or any of the individual defendants are homosexual.

Martin testified that during the course of the harassment he spoke with Hornbuckle on a number of occasions about stopping the harassment to no avail. He also testified that on four or five occasions he spoke with Mr. Benson, who was second in authority to the Master Mechanic, about bringing the harassment to an end. He also requested help from Mr. Loughner, the second shift supervisor. However, neither Benson nor Loughner made any effort to stop the offensive conduct. Martin did not contact the company's Equal Employment Opportunity Department or notify the Master Mechanic. He also did not attempt to utilize the company's sexual harassment policy. Norfolk Southern alleges the plaintiff received specific training and literature regarding the harassment policy; Martin claims he was merely aware of the existence of the policy, not the specifics.

On April 4, 1994, Norfolk Southern received a copy of the charge of discrimination the plaintiff filed with the Equal Employment Opportunity Commission ("EEOC"). On April 7, 1994, S.B. Stutsman, manager of Norfolk Southern's Equal Employment Opportunity Department, came to Birmingham and interviewed Martin, Hornbuckle, Summerlin, Thomasson, and various other persons in the Mechanical Department at Norris Yard concerning Martin's allegations. Stutsman was assisted by Bennett, the Master Mechanic of the diesel department at Norris Yard. As a result of the initial investigation, Norfolk Southern suspended Hornbuckle, Thomasson and Summerlin from their employment on the grounds of conduct unbecoming an employee. After a formal hearing, Hearing Officer L.C. Smith upheld each of the charges leveled against them and all three were terminated.

Martin also claims that Norfolk Southern mishandled his EEOC charge. The EEOC erroneously sent the charge to the Transportation Department, rather than the Mechanical Department, where it was allowed to be opened and read. Martin testified that because his complaint became public knowledge, he experienced hostility from other Norfolk Southern employees on the third shift at the diesel shop at Norris Yard. Due to this hostility, he was allowed to begin working the first shift. Martin then chose to take a medical leave of absence. During his medical leave, he and his new wife moved back to South Carolina. Norfolk Southern informed Martin that upon the expiration of his six month leave period, he was to report to work in Birmingham if he had not been placed on long term disability. When his leave expired, he chose not to return to work and was discharged in accord with company policy.

III. Discussion.

A. The Title VII Claims.

All the defendants move for summary judgment on the sexual harassment claim under Title VII.¹

Title VII of the Civil Rights Act of 1994, provides in pertinent part:

It shall be unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's ... sex.

42 U.S.C. § 2000e-2(a)(1). Under the plain language of the statute, employment discrimination based on gender is prohibited. See Hopkins v. Baltimore Gas & Electric Co., 871 F.Supp. 822, 833 n. 17 (D.Md.1994) ("Courts have recognized that the word `sex' as used in Title VII means, in effect, `gender.'"). This principle applies equally to both men and women. Furthermore, the statute contains no words of limitation requiring the employer to be of the opposite gender of the employee; thus, arguably, same-sex gender discrimination is covered by Title VII. See Tietgen v. Brown's Westminster Motors, Inc., 921 F.Supp. 1495 (E.D.Va., Alexandra Division 1996) ("Conspicuously, the statute does not mention the employer's gender. It follows, therefore, that the ... statute prohibits all employment discrimination based on an employee's sex or gender, whatever employer and employee gender combination may be involved.... So same-gender discrimination ... is within the statute's reach provided the discrimination occurs because of the employee's gender.").

In the case at bar, Martin, a male, claims the defendants, also males, subjected him to a hostile working environment based on sex in violation of Title VII. Because gender discrimination is prohibited regardless of the employer/employee combination, it would seem that same-sex hostile working environment discrimination would be actionable under the statute. However, hostile working environment sexual harassment is different from sex discrimination cases predicated upon disparate treatment in that it is not specifically mentioned in the language of the statute, but is a product of judicial interpretation. In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court recognized for the first time that "a plaintiff may...