McCoy v. Macon Water Authority, 5:94-cv-480-4 (HL).

• Citation: 966 F.Supp. 1209
• Decision Date: 05 February 1997
• Docket Number: No. 5:94-cv-480-4 (HL).,5:94-cv-480-4 (HL).
• Parties: Robert F. McCOY, Jr., Plaintiff, v. MACON WATER AUTHORITY, H.E. Holcomb, and Charles Birken-camper, Defendants.
• Court: U.S. District Court — Middle District of Georgia

966 F.Supp. 1209

Robert F. McCOY, Jr., Plaintiff, v. MACON WATER AUTHORITY, H.E. Holcomb, and Charles Birken-camper, Defendants.

No. 5:94-cv-480-4 (HL).

United States District Court, M.D. Georgia, Macon Division.

February 5, 1997.

Order Denying Reconsideration June 16, 1997.

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M. Linda Mabry, Macon, GA, for plaintiff.

Wallace Warren Plowden, Jr., Charles Ashley Royal, Macon, GA, for defendants.

ORDER

LAWSON, District Judge.

Plaintiff Robert F. McCoy, Jr., filed this lawsuit on November 18, 1994, alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., civil rights violations under 42 U.S.C. § 1983, retaliation, constructive discharge, and First Amendment violations. Before the Court is Defendants' Motion for Summary Judgment. Because there are genuine issues of material fact which remain to be resolved, the motion is DENIED as to the hostile work environment sexual harassment claim. However, the Court finds that Defendants are entitled to judgment as a matter of law on all other claims. Accordingly, the motion is GRANTED as to Plaintiff's claims for retaliation, constructive discharge, violation of Section 1983, and interference with First Amendment rights.

I. Summary Judgment.

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be entered in a favor of the movant where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is [1] no genuine issue as to any material fact and that [2] the moving party is entitled to judgment as a matter of law." Because at summary judgment "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986), the Court must believe the evidence of the nonmoving party and draw all justifiable inferences in its favor. Id., 477 U.S. at 248, 106 S.Ct. at 2510. Summary judgment is not an appropriate occasion to weigh the credibility of evidence.

Although the Court is not to make credibility determinations concerning the parties' evidence, the party opposing summary judgment must be able to demonstrate that there is a genuine issue of material fact as to each essential element of its claim. Otherwise the movant will be entitled to judgment as a matter of law, "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). As explained above, the evidence and all factual inferences therefrom must be viewed by the court in the light most favorable to the party opposing the motion; nevertheless, the party opposing the granting of the motion for summary judgment cannot rest on his pleadings to present an issue of fact. The non-moving party must make a response to the motion by filing affidavits, depositions, or otherwise in order to persuade the court that there are material facts present in the case which must be presented to a jury for resolution. See Van T. Junkins & Assoc. v. U.S. Industries, Inc., 736 F.2d 656, 658 (11th Cir.1984).

As to materiality, "the substantive law will identify which facts are material. Only disputes that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. For a question of fact to be "genuine," there must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id., 477 U.S. at 249-250, 106 S.Ct. at 2511. (Cites omitted). The party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts," Irby v. Bittick, 44 F.3d 949, 953 (11th Cir.1995) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 1355-1356, 89 L.Ed.2d 538 (1986)). Only those doubts about facts that are reasonable must be resolved in favor of the nonmovant. Irby, 44 F.3d at 953.

II. Facts as Construed in Plaintiff's Favor.

Plaintiff Robert McCoy (McCoy) began employment with the Macon Water Authority in August, 1985, immediately after being graduated from high school. Within two years, he received a Class II Wastewater Certification and became a supervisor at the Rocky Creek Pollution Control Plant. Some time later, he transferred to the Wilson Plant, where he served as supervisor for approximately five years. At the time he left the Water Authority in August, 1994, McCoy was acting as the supervisor of the Wilson Plant and the Land Spray Application Plant. As the supervisor and only employee at both plants, McCoy was responsible for the regular maintenance and operation of the plants, and was required to collect wastewater samples from industrial plants for testing and monitoring. His work was supervised by Charles Birkencamper, the manager of the Rocky Creek Plant.

McCoy alleges that during the course of his employment with the Water Authority, Birkencamper made various sexual comments and expressed a sexual interest in him. McCoy has testified that Birkencamper repeatedly and directly asked him about the size of his penis; indirectly inquired about the size of his penis by asking the size of his girlfriend's vagina; commented on his body; suggested that he take up bodybuilding or become a wrestler; speculated about his sexual performance; invited him to go to car shows out of town and share a hotel room; and discussed intimate relations with a male friend. A female employee has testified that Birkencamper frequently spoke to her about his male friend and his friend's body. On one occasion, Birkencamper refused to allow McCoy to attend a wastewater seminar in Augusta so that McCoy could go to a seminar with Birkencamper at Jekyll Island in the summer and so that Birkencamper might see him in a bikini bathing suit. According to McCoy, Birkencamper showed no sexual interest in women.

In February or March of 1994, McCoy complained to Don Thompson, Director of Plant Operations for the Macon Water Authority, about Birkencamper's behavior. McCoy alleges that Thompson did not investigate his complaint and took no formal action in response to his concerns, but only told him to avoid Charles Birkencamper as much as possible. Thompson held a staff meeting on March 17, 1994, at which he discussed sexual harassment and warned the staff, including Birkencamper, who was present at the meeting, to avoid openly discussing "things of a personal nature." (Plaintiff's Exhibit 10). McCoy has admitted that Birkencamper did not make any more comments of a sexual or offensive nature after his complaint to Thompson. After receiving an inquiry from a television station, H.E. Holcomb, Executive Director of the Macon Water Authority, interviewed McCoy and then questioned Birkencamper's secretary and the assistant manager of the Rocky Creek Plant, Joe Bledsoe. Although Holcomb did not conduct a formal investigation beyond questioning McCoy and the two Rocky Creek employees, he wrote McCoy on March 22, 1994, concluding that no justification existed for a charge of sexual harassment.

On the same day that he received the letter from Holcomb, McCoy received a new work schedule from Birkencamper and Bledsoe, which he found to be excessively demanding. The next day, March 23, McCoy filed a charge of sexual harassment with the EEOC and complained to Don Thompson that the work schedule was in retaliation for his sexual harassment complaints. When Holcomb learned of McCoy's EEOC charge, he sent Thompson to "get" McCoy and bring him to the office. McCoy was carried to Holcomb's office for a meeting which McCoy characterizes as threatening and intimidating. In response to the meeting, McCoy filed another EEOC charge on April 20, 1994, alleging retaliation.

On May 31, 1994, McCoy was directed to report only to Joe Bledsoe, at 4:15 PM each day. His monitoring records were moved to Bledsoe's office across the street, where McCoy was to record his daily readings at the end of each day. Bledsoe had a hostile attitude towards McCoy and required him to remain in the office from 4:15 until the end of the day. McCoy also alleges that Bledsoe searched his desk and that other employees were ordered to spy on him. Citing the treatment he was receiving at work, McCoy resigned from his position at the Water Authority on July 29, 1994.

III. Title VII and Same-Sex Sexual Harassment.

By arguing that summary judgment is appropriate because Title VII does not provide a cause of action for same-sex hostile environment sexual harassment, Defendants have cast this court into the center of an intense nationwide jurisprudential debate. Dozens of cases dealing with the issue have been decided in the past three years, but the issue remains unsettled. Although there appears to be an emerging majority which favors the extension of Title VII to include an action for same-sex harassment, neither the Eleventh Circuit nor the Supreme Court have ruled on the issue¹, and only three other circuit courts have directly addressed it. There are strong arguments on both sides of the debate which the Court must consider carefully.

The argument against allowing a cause of action for same-sex harassment is rooted in legislative intent and judicial restraint. Courts have noted that sexual harassment itself is a judicial extension of Title VII created as a means of preventing an indirect form of sexual discrimination. There is no mention of "sexual harassment" in the language of the statute, which...