McAboy v. Westervelt Co.

• Decision Date: 11 December 2018
• Docket Number: 7:17-cv-00813-LSC
• Parties: SHIRLEY A. MCABOY, Plaintiff, v. THE WESTERVELT COMPANY, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

SHIRLEY A. MCABOY, Plaintiff, v. THE WESTERVELT COMPANY, INC., Defendant.

7:17-cv-00813-LSC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION

December 11, 2018

MEMORANDUM OF OPINION

Before the Court is Defendant The Westervelt Company Inc's ("Westervelt") Motion for Summary Judgment (doc. 30). The motion has been briefed and is ripe for review. For the reasons stated below, Westervelt's Motion for Summary Judgment (doc. 30) is due to be granted.

I. BACKGROUND¹

Westervelt owns and manages a wood processing mill in Moundville, Alabama. In October 2000, Westervelt hired Shirley McAboy ("McAboy" or "Plaintiff") as a sorter operator. In June 2005, McAboy was promoted to the position of stackeroperator. McAboy remained in this position until she was terminated by Westervelt in June 2016.

When McAboy was hired in 2000, she was given an Associate Information Guide ("Employee Handbook" or "Handbook").This Handbook contained a reporting procedure for incidents of alleged harassment or discrimination, along with a zero tolerance policy on harassment. (Doc. 31-1 at Ex. 4.) The Handbook was updated periodically, and employees signed an acknowledgement every time they received an updated version of the handbook. McAboy acknowledged receiving the Handbook and signed multiple acknowledgments that she received to the Handbook. (Id. at 32-34); (Doc. 31-2 at 2-7.) Although the Handbook contained a step based process for escalating disciplinary problems, discipline regarding profane language would often "depend on the situation." (Doc. 31-4 at 64.)

McAboy testified that while she worked at Westervelt both herself and her co-workers discussed sex. (Doc. 31-1 at 54, 88-89.) However, McAboy testified that many of these conversations involved sexually harassing remarks being made to her by various co-workers. In September of 2012, McAboy filed an EEOC charge against Westervelt that alleged she was being harassed by some of her male co-workers due to complaints about her job performance and the usage of profanitytowards her. (Doc. 31-2 at 11.) McAboy's charge acknowledged that she responded to these comments with further profanity and that she was reprimanded for and suspended for her comments. (Id.) The EEOC was unable to find any violation based upon its investigation of this charge, and thus dismissed her charge. (Id. at 12.) McAboy remained employed at Westervelt in the same position and at the same rate of pay after this incident. (Doc. 31-3 at 36.). According to McAboy, the harassing conduct continued as at least seven of her co-workers continued to discuss sex with her and solicit sex from her.

In June of 2015, Westervelt placed McAboy on eighteen months' probation due to her poor work performance and use of her cell phone at her work station. (Doc. 31-2 at 64.) In 2016, McAboy experienced a falling out with her co-worker Morris Ashe ("Ashe").( Doc. 31-1 at 107. ) McAboy testified that after her friendship with Ashe ended, Ashe began calling her a "b***h," "slut," and "dumb a**," and he "told [her] he wanted to f***k [her] daughter." (Id. at 175-76.) McAboy testified that Ashe "called [her] a b***h and ho . . . more than 30, 40 times" in 2016. (Id. at 112-13.) McAboy reported Ashe's comments to James Scott ("Scott"), her supervisor, and Nish Phillips ("Phillips"), the head of Human Resources. (Id. at 113). As a result of her complaint, Scott required Ashe and McAboy to exchangeapologies. (Id. at 113-14.) McAboy testified that Ashe's harassment started again two days after Scott made the two exchange apologies. (Id. at 114.) McAboy testified that she reported Ashe's continued harassment to Scott, but Scott told her "y'all need to get along down there." (Id.) After the second report to Scott, McAboy no longer reported Ashe. (Id.)

On June 8, 2016, Phillips received a report from Ashe that McAboy had harassed him, telling him "[w]orry about your effing mama. You a b***h." (Doc. 31-8 at 75-76.) Ashe also complained to Scotty Noland ("Noland'), the production superintendent, about this incident. (Id. at 33) Noland, Phillips, and Scott then met to discuss both this incident and McAboy's continued employment at Westervelt. (Doc. 31-4 at 70-72.) Noland, Phillips, and Scott decided to terminate McAboy. (Id.) Upon her termination, McAboy sought to speak with Phillips about the incident but Noland told her she could not speak to Phillips, and Phillips did not answer McAboy's calls. (Doc. 31-1 at 77-78.)

McAboy filed a second EEOC charge in September 2016 alleging sexual harassment by Ashe and asserting that she was terminated in retaliation for complaining to her supervisors about Ashe's harassment. (Doc. 31-2 at 21.). McAboy's EEOC charge only mentioned harassment by Ashe. (Id.) McAboyreceived her notice of the right to sue letter on March 10, 2017 and filed this action on May 17, 2017 (Doc. 31-2 at 23.)

II. STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact² and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine if "the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Id. A genuine dispute as to a material fact exists "if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor." Greenberg v. BellSouth Telecomms, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge should not weigh the evidence, but determine whether there are any genuine issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

In considering a motion for summary judgment, trial courts must give deference to the non-moving party by "view[ing] the materials presented and all factual inferences in the light most favorable to the nonmoving party." Animal Legal Def. Fund v. U.S. Dep't of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015)(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, "unsubstantiated assertions alone are not enough to withstand a motion for summary judgment." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory allegations and "mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment." Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a motion for summary judgment, "the moving party has the burden of either negating an essential element of the nonmoving party's case or showing that there is no evidence to prove a fact necessary to the nonmoving party's case." McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting motions for summary judgment, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

III. DISCUSSION

McAboy alleges that Westervelt violated Title VII by discriminating against her on the basis of sex because it (1) engaged in disparate treatment of her, (2) itallowed her to be sexually harassed creating a hostile work environment, and (3) it terminated her in retaliation for reporting sexual harassment.

a. DISPARATE TREATMENT

McAboy articulates, for the first time in her response to Westervelt's motion for summary judgment, a disparate treatment theory of discrimination in regard to discipline and termination under Title VII.³

i. EXHAUSTION

The Eleventh Circuit has noted that a "plaintiff may not amend her complaint through argument in a brief opposing summary judgment." See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir. 2004) (noting that "[l]iberal pleading does not require that, at the summary judgment stage, defendants must infer all possible claims that could arise out of facts set forth in the complaint."). This is because "[e]fficiency and judicial economy require that the liberal pleading standard under Swierkiewicz and Rule 8(a) are inapplicable afterdiscovery has commenced." Id. at 1314. Therefore, the proper way for a plaintiff to bring a new claim of discrimination is to move to amend the complaint through Rule 15(a). Id.

Here, the Court's review of McAboy's initial and amended complaint does not reveal that McAboy asserted a disparate treatment theory in regard to discipline or her termination, nor that she plead sufficient facts to establish such a claim. The proper method through which McAboy should have sought to add such a claim would have been to seek leave to amend her complaint and assert such a claim. See Id. However, McAboy has not sought to amend her complaint. Nor has Westervelt waived any objection to such amendment. In fact, Westervelt has explicitly objected to McAboy's attempt to raise this claim for the first time in her brief opposing summary judgment. Therefore, Westervelt is entitled to summary judgment on McAboy's disparate treatment claim because it was not properly raised. See Huddleston v Sunshine Mills, Inc., 965 F. Supp.2d 1298, 1310 (N.D. Ala. 2013) (refusing to consider a plaintiff's disparate impact theory of discrimination when this theory was raised for the first time in plaintiff's brief in opposition for summary judgment.); Cooley v. Great Southern Wood Preserving, 138 Fed.Appx. 149, 154 (11th Cir. 2005) (concluding that it was not an abuse of discretion for a districtcourt to dismiss a claim of hostile work environment raised for the first time in plaintiff's brief in opposition to summary judgment).

If this claim was allowed to proceed, it would not be barred by a failure to exhaust administrative remedies. Exhausting one's administrative...