Mills v. Wex-Tex Industries, Inc., 96-D-1616-S.

• Decision Date: 25 September 1997
• Docket Number: No. 96-D-1616-S.,96-D-1616-S.
• Citation: 991 F.Supp. 1370
• Parties: Linda Gail MILLS, Plaintiff, v. WEX-TEX INDUSTRIES, INC., Phillip D. Blackwell and William Nomberg, Defendants.
• Court: U.S. District Court — Middle District of Alabama

991 F.Supp. 1370

Linda Gail MILLS, Plaintiff, v. WEX-TEX INDUSTRIES, INC., Phillip D. Blackwell and William Nomberg, Defendants.

No. 96-D-1616-S.

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

September 25, 1997.

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Charles B. Paterson, Montgomery, AL, James H. Pike, Dothan, AL, for plaintiff.

Edward M. Price, Jr., Dothan, AL, Joseph C. Espy, III, Montgomery, AL, James D. Farmer, Dothan, AL, for defendants.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

On October 29, 1996, Plaintiff Linda Mills ("Mills") filed a seven count Complaint against Wex-Tex Industries, Inc. ("Wex-Tex"), William Nomberg ("Nomberg") and Phillip D. Blackwell ("Blackwell"). Mills was employed as a payroll/accounts receivable clerk in the Dothan, Alabama plant of Wex-Tex. Nomberg is the principal owner and President of Wex-Tex. Blackwell was Plant Manager of the Dothan plant and Mills' direct supervisor.

Count I of Mills' complaint alleges quid pro quo and hostile environment sexual harassment by the Defendants in violation of Title VII of the Civil Rights Act of 1964.¹ See 42 U.S.C.2000e, et. seq. ("Title VII"). In Count II, Mills alleges retaliation in violation of Title VII. Mills contends that actions were taken against her because of her opposition to the alleged sexual harassment. Mills claims that ultimately, she was constructively discharged.

Counts III, IV, V and VII allege various state-law intentional tort claims. Count III alleges Assault and Battery, Count IV Invasion of Privacy, Count V Outrage, and Count VII Defamation. Count VI alleges Negligent Hiring, Training and Retention.

Before the court are motions for summary judgment filed by Nomberg and Blackwell and a motion for partial summary judgment filed by Wex-Tex.² Mills filed a Memorandum Of Fact And Law In Opposition To Defendants' Motions on July 25, 1997, and a Supplemental Memorandum Of Fact In Opposition To Defendants' Motions on September 10, 1997. Nomberg and Wex-Tex filed a reply on September 18, 1997.

JURISDICTION

The court properly exercises subject matter jurisdiction pursuant to 42 U.S.C. § 2000e-5(f), 28 U.S.C. §§ 1331, 1343(a)(4), and § 1367(a). The parties do not contest personal jurisdiction or venue.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in a light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "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). As the Supreme Court has explained the summary judgment standard:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The trial court's function at this juncture is not "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, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324; see also Fed.R.Civ.P. 56(e).

In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587. An action is void of a material issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita, 475 U.S. at 587; see also Anderson, 477 U.S. at 249.

DISCUSSION

I. FACTUAL SUMMARY³

Mills began work at the Dothan, Alabama plant of Wex-Tex in October of 1995 as a production and payroll clerk. Mills contends that beginning in November of 1995 and continuing through March of 1996, Blackwell took advantage of his position as Mills' supervisor to subject her to a pattern of continued sexual harassment. Mills' Compl. ¶ 9; Mills' Mem. In Opp. at 2. Mills also contends that Nomberg and other Wex-Tex officials were aware of Blackwell's conduct and failed to properly discipline him for his actions. Mills' Compl. ¶ 9. Mills claims that she was eventually constructively discharged on March 8, 1996. Mills' Compl. ¶ 23.

During November of 1995, Blackwell began to show Mills an "unusual amount of attention." Mills' Aff. ¶ 5. He invited her to go on personal errands with him and took her to lunch at local restaurants. Id. When Mills expressed concern about getting back to work, Blackwell said "I am the boss." Id. In early November, Mills alleges that Blackwell followed her to her car and said "I would like to fool around with you." Id. at 6. A few weeks later, Blackwell followed her home, which frightened both Mills and her daughter.⁴ Id. ¶ 7.

In late November of 1995, Mills contends that Blackwell grabbed her buttocks. Id. ¶ 9. At the company Christmas party on or about December 14, 1995, Blackwell pinned Mills against the wall and tried to kiss her. Id. ¶ 10. Twice in late December of 1995, Blackwell grabbed her breasts. Id. ¶¶ 15, 17. Around December 22, 1995, Blackwell followed Mills to a local toy store, which made her uncomfortable. Id. ¶ 12. Between December 30, 1995 and January 1, 1996, Blackwell called Mills' residence forty-six times, went to her house three times and left a note on her car. Id. ¶¶ 18-20. This activity was unwelcome, shocking and humiliating to Mills. Id. ¶¶ 9, 10, 12, 15, 17. Sometime in late December, Mills communicated to Blackwell that she could no longer tolerate his unwelcome advances and harassment. Id. ¶ 11. On December 29, 1995, Mills sought legal advice. Id. ¶ 17.

On January 2, 1996, Blackwell asked Mills to come to his office so that he could speak to her. Id. ¶ 21. Mills declined, and Blackwell sat next to her desk and stared at her, making her feel uncomfortable. Id. Later that day, Blackwell motioned for Mills to follow him. Id. Mills ignored him and turned away, and Blackwell approached her and pinched her on the arm, leaving a welt. Id. Blackwell also grabbed Mills by the arm and tried to pull her into his office. Id. He gave her a couple of notes, and called her home several times after work. Id. One of the notes said "talk to me dammit." Mills' Aff., Exhibit J.

Two days later, on January 4, 1996, Mills and another employee, Gayle Wilemon, met with Defendant Nomberg, President of Wex-Tex and Blackwell's boss, to complain about Blackwell's conduct. Mills' Aff. ¶ 23; Wex-Tex's Answer ¶ 15; Nomberg's Answer ¶ 15. After this meeting, Mills had no other conversation with Nomberg. Nomberg's Mem. In Supp. at 3; Mills' Dep. at 102-103. Later that day, Blackwell went to Wex-Tex's Ashford, Alabama plant to meet with Nomberg and another Wex-Tex officer named Ricky Bern. Mills' Aff. ¶ 23; Blackwell Dep. At 238. Blackwell returned to the Dothan plant and emptied his desk. Mills' Aff. ¶ 23; Blackwell Dep. at 243. Mills contends that after she complained about Blackwell's behavior, her co-workers exhibited hostility and anger towards her — she was told that she should have "let it go." Mills' Aff. ¶¶ 24, 29.

Beginning January 8, 1996, Blackwell was assigned to Wex-Tex's Ashford, Alabama plant, while Mills remained at the Dothan plant. Mills' Aff. ¶ 28; Blackwell Dep. at 247. Mills claims that after complaining about Blackwell's conduct, her work scheduled was cut back to forty hours per week rather than the fifty plus hours she had regularly been working and she did not get the salary review she had been promised when she was hired. Mills' Aff. ¶ 28.

The next week, Blackwell visited the Dothan plant on several occasions. Id. ¶ 30; Blackwell Dep. at 255-56; Blackwell's Answer ¶ 16(a). On one occasion, Mills contends that he waited until other employees left the office and then stood by her desk and stared at her for awhile. Mills' Aff. ¶ 30. On January 22, 1996, Mills called Ricky Bern and complained about Blackwell's continuing conduct and expressed her discomfort with working around Blackwell. Id. ¶ 31. She then asked Mr. Bern if Blackwell could be transferred back to...