Orquiola v. National City Mortg. Co.

• Decision Date: 16 January 2007
• Docket Number: Civil Action No. 1:05-CV-0783-JOF.
• Citation: 510 F.Supp.2d 1134
• Parties: Concepcion ORQUIOLA, Plaintiff, v. NATIONAL CITY MORTGAGE CO., Defendant.
• Court: U.S. District Court — Northern District of Georgia

510 F.Supp.2d 1134

Concepcion ORQUIOLA, Plaintiff, v. NATIONAL CITY MORTGAGE CO., Defendant.

Civil Action No. 1:05-CV-0783-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

January 16, 2007.

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Amanda A. Farahany, Barrett & Farahany, LLP, Atlanta, GA, for Plaintiff.

William Stroud Sutton, McLain & Merritt, Atlanta, GA, for Defendant.

OPINION AND ORDER

FORRESTER, Senior District Judge.

This matter is before the court on Defendant's motion for summary judgment [36-1], the Report and Recommendation of Magistrate Judge Janet F. King [67-1], and Plaintiff's objections thereto [69-1].

I. Procedural History and Facts

Plaintiff, Concepcion Orquiola, filed suit against Defendant, National City Mortgage Co., on March 25, 2005, alleging that Defendant subjected her to tangible employment action sexual harassment, a sexually hostile work environment, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Plaintiff also asserts state law claims of "negligent and reckless failure to provide Plaintiff with a safe working environment," negligent hiring, retention, and supervision, battery, invasion of privacy, and ratification of wrongful conduct. After discovery, Defendant filed the instant motion for summary judgment.

Magistrate Judge King issued a Report and Recommendation in which she recommended that the court grant Defendant's motion for summary judgment with respect to Plaintiff's hostile work environment and state law claims, but deny the motion on Plaintiff's tangible employment action sexual harassment and retaliation claims. Defendant did not file any objections to the Report and Recommendation. Plaintiff filed an objection to the Magistrate Judge's recommendation that Plaintiff's state law claims be dismissed. Therefore, the court's recitation of facts and analysis will focus only on the state law claims.

Plaintiff began working for Defendant on August 11, 2003. In October 2003, Plaintiff took a business trip with her supervisor, Stephen Buonanno. On the trip Buonanno asked her several personal questions about her marriage and told her that he believed his wife was having an affair. He also attempted to hold her hand and informed her he had a crush on her. At a lunch in early November 2003, Buonanno again discussed problems in his family and attempted to kiss Plaintiff on the cheek. He then stated that he wanted to have sex with her. Plaintiff testified that Buonanno did not engage in any further inappropriate conduct toward her.

Beginning in January 2004, however, Plaintiff believed that Buonanno started acting "cold" toward her. He demoted her from Acting Branch/Operations Manager and Regional Underwriting Manager to Lead Underwriting Manager with a reduction in her salary and loss of bonus. In early February 2004, Buonanno gave Plaintiff a negative performance evaluation. When she went to his office to complain, Buonanno told her that if she "kept quiet, he will pay me up to one month and start looking for a new job." The stress of this situation caused Plaintiff's health to deteriorate, and she took disability leave from February 12 to February 20. While out on leave — on February 16, 2004 — Plaintiff for the first time took her complaints about Buonanno to Defendant's Human Resources Department.

Plaintiff returned to work on February 23 and February 24, but then went out on longterm disability leave. While she was out on leave, the Human Resources Department learned that she had given her confidential user identification and password to a subordinate in violation of company policy. Defendant suspended Plaintiff's computer access for the remainder of her leave. Defendant also sent Plaintiff's personal belongings from her office to her home and assigned her office and telephone extension to another employee. While Plaintiff was out on leave, Defendant conducted an investigation into Plaintiff's complaints about Buonanno.

On May 12, 2004, Plaintiff faxed to Defendant her doctor's release showing she was able to return to work. She called Defendant's office on that day and the next to ask about her return but did not receive any calls back. On May 17, 2004, Plaintiff e-mailed Defendant and asked that someone send to her husband's fax machine her separation notice. She also informed Defendant that her husband would return her laptop computer. In response to this email, Defendant wrote Plaintiff and informed her that her employment had been terminated effective May 19, 2004. Several weeks later, Defendant also informed Plaintiff that it had not been able to substantiate Plaintiff's allegations in the harassment investigation because there were no witnesses and Buonanno denied the conduct. Therefore, Defendant stated, it could not conclude that harassment had occurred. In the same letter, Defendant forwarded to Plaintiff a bonus check for December 2003.

II. State Law Claims

The specific nature of Plaintiff's state law claims is difficult to discern based on the parties' briefings. Plaintiff's complaint raises state law claims of (1) "negligent and reckless failure to provide Plaintiff with a safe working environment," (2) negligent hiring, retention, and supervision, and (3) ratification of wrongful conduct. (Although Plaintiff originally brought claims of battery and invasion of privacy against Buonanno, Plaintiff voluntarily dismissed all claims against Buonanno on September 14, 2005.).

In its motion, Defendant moved for summary judgment on battery, invasion of privacy, negligent hiring and retention, and intentional/negligent infliction of emotional distress. Plaintiff responded arguing that Defendant is liable for (1) Buonanno's sexual harassment of Plaintiff, (2) negligent retention and supervision because Defendant was on notice of Buonanno's propensity for sexual harassment, and (3) failure to provide Plaintiff with a safe working environment.

Because Plaintiff did not respond to Defendant's motion for summary judgment as to her battery and invasion of privacy claims, the court deems them abandoned and grants Defendant's motion for summary judgment on those grounds.

Defendant's motion with respect to intentional infliction is more puzzling. In her response to Defendant's motion for summary judgment, Plaintiff repeatedly refers to the fact that the standards for "sexual harassment" under Title VII are different than those in Georgia law. The court must emphasize, however, that there exists no cause of action in Georgia for "sexual harassment." Georgia law does provide a cause of action for intentional infliction of emotional distress. Employees may allege harassment claims through this cause of action. However (and despite the fact that Defendant moved for summary judgment on this claim), Plaintiffs complaint contains no cause of action for intentional infliction of emotional distress.

Therefore, eliminating the claims not raised in her complaint or abandoned for failure to respond to Defendant's motion for summary judgment, Plaintiffs remaining state law claims are: (1) "negligent and reckless failure to provide Plaintiff with a safe working environment," and (2) negligent hiring, retention, and supervision, and (3) ratification of wrongful conduct.

In her Report and Recommendation, Magistrate Judge King found that Plaintiff s claim for failure to provide a safe working environment arose out of O.C.G.A. § 34-2-10(a). Magistrate Judge King noted, however, that Plaintiff had provided no citation to any case law which permitted such a claim to be raised on facts such as were present here and recommended summary judgment as to this claim. Plaintiff has not filed any objection to this recommendation and the court adopts it.

With respect to Plaintiffs negligent retention and supervision claim, Magistrate Judge King found that Defendant did not have any reason to know of Buonanno's alleged propensity for sexual harassment. The Magistrate Judge noted only one other time this issue arose — when Diane Crutcher, a former employee, told one of Defendant's Human Resources employees that a third employee had "hinted about sexual harassment" involving Buonanno. The third employee, herself, had never made a complaint. Defendant investigated the incident and could not determine from Crutcher's second-hand reporting whether the third employee was complaining about sexual harassment or a consensual sexual relationship. The Magistrate Judge determined that the information relayed by Crutcher was not sufficient to put Defendant on notice that Buonanno had a propensity for sexual harassment. Plaintiff does not object to this specific finding by the Magistrate Judge and the court adopts it.

Rather than objecting to the Magistrate Judge's determination about the Crutcher matter, in her objections to the Report and Recommendation, Plaintiff proffers a new theory for why Defendant should be liable under negligent retention: That Defendant had reason to know of Buonanno's propensity for retaliation. Plaintiff has not previously raised this species of a negligent retention claim, and the court rejects Plaintiffs objections on that basis alone.

Additionally, the court notes that it is not clear that a negligent retention claim can survive on its own without an underlying state law tort. Plaintiff attempts to address this issue in her objections when she states that "[r]etaliatory conduct is a type of harm prohibited under Georgia law. Trimble v. Circuit City Stores, Inc., 220 Ga.App. 498, 469 S.E.2d 776 (1996)." See Objections, at 2. Trimble, however, does not recognize a tort under Georgia law for retaliation. Rather, Trimble holds that "an employer's retaliation against an employee for testifying against the employer could provide the basis for an employee's intentional infliction of emotional distress claim." Trimble, 220 Ga.App. at 500, 469 S.E.2d 776 (citing Yarbray v. Southern Bell Tel. &...