Peake v. Brownlee, 3:02-0656.

Decision Date18 December 2003
Docket NumberNo. 3:02-0656.,3:02-0656.
PartiesVicki S. PEAKE, v. Les BROWNLEE, Acting Secretary, United States Department of the Army.
CourtU.S. District Court — Middle District of Tennessee

James E. Goodman, Goodman & Associates, P.C., Atlanta, GA, for Vicki S. Peake.

Karen A. Rivera, Department of Justice, Civil Division, Steven Y. Bressler, Department of Justice, Civil Division, Washington, DC, for Les Brownlee, Acting Secretary, United States Department of the Army.

MEMORANDUM

ECHOLS, Chief Judge.

Pending before the Court is Defendant's Motion for Summary Judgment of Plaintiff's sexual harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Docket Entry No. 63).

I. PROCEDURAL HISTORY

Plaintiff filed this lawsuit on July 12, 2002, against her employer, Les Brownlee, as Acting Secretary, U.S. Department of the Army, alleging unlawful sexual harassment, discrimination, and hostile work environment (Count One), as well as discriminatory retaliation for filing an Equal Employment Opportunity ("EEO") complaint (Count Two), both in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff alleges that she has suffered mental and physical injuries, loss of pay, loss of benefits, loss of training, loss of promotion and transfer opportunities, and loss of leave time. Plaintiff seeks back pay and benefits, with interest; front pay and benefits; compensation for any negative consequences under the tax code of receiving a lump sum award for front and back pay in a single year; compensatory damages; unspecified special damages; and her attorney's fees. The Court has federal question jurisdiction over this lawsuit. See 28 U.S.C. § 1331.

Defendant moved for summary judgment on October 2, 2003, averring that Plaintiff has adduced no genuine issue of material fact to establish a prima facie case of either her sexual harassment or retaliation, and that judgment as a matter of law is warranted. After obtaining extensions, Plaintiff responded to Defendant's Motion on November 10, 2003. (Docket Entry No. 84). This case is set for jury trial on January 20, 2004.

II. PLAINTIFF'S ALLEGATIONS
A. Background

Plaintiff, a resident of Tennessee, began working at Fort Campbell, Kentucky, as a civilian employee on July 7, 1997. At the time of the events at issue in this lawsuit, Plaintiff was employed as a GS-9 Facilities Utilization Specialist with the Master Planning Branch, Engineering Division, of the Public Works Business Center at Fort Campbell. Apparently, Plaintiff remains employed in that capacity.

Plaintiff's sexual harassment allegations involve conduct by Joseph Galluzzo, a co-worker who worked as an engineer in the same office from May 1992 until retiring in October 2000. Galluzzo retired of his own will, without being asked to do so, on account of vision problems. It is undisputed that Galluzzo has been diagnosed as bi-polar and has been taking the drugs Lithium and Depakote to treat that condition since at least 1995.

In addition to Galluzzo, Plaintiff's sexual harassment allegations concern another employee, William Sale, who worked as a copy technician in a different office at the Public Works Business Center at Fort Campbell. It is undisputed that Sale has inappropriately touched females and displayed sexually explicit magazines at work, brought girlfriends to work, and once was found with his hands on his genitals (whether clothed or unclothed is unclear). Plaintiff alleges that the women Sale brought to work were prostitutes, that Sale had "phone sex" at work, and that he was caught masturbating in public at work. However, Plaintiff did not witness any of this alleged conduct, and Plaintiff's citations in support of these allegations do not contain any statements founded on first-hand knowledge.1 Plaintiff bases these allegations — whose materiality is highly questionable in the first place — on inadmissible hearsay. Accordingly, the allegations concerning Sale will not be considered.2 See Leibovitz v. New York City Transit Auth., 252 F.3d 179, 189-90 (2d Cir.2001) which states:

The only way to characterize [plaintiff]'s environment as hostile or abusive is by expanding the concept of environment to include venues in which she did not work. Such a characterization would open the door to limitless employer liability, and allow a recovery by any employee made distraught by office gossip, rumor or innuendo. In short, [plaintiff] presented no evidence that her own working environment was hostile, and failed to allege or prove that harassment of other women adversely affected the terms and conditions of her own employment. We hold that [plaintiff] — who was not herself a target of the alleged harassment, was not present when the harassment supposedly occurred, and did not even know of the harassment while it was ongoing — failed to prove that an environment existed at work that was hostile to her because of her sex.

B. Plaintiff's Allegations of Sexual Harassment and Hostile Work Environment

The first incident of alleged sexual harassment and/or hostile work environment cited by Plaintiff occurred on April 14, 1994, when Galluzzo yelled at another female employee, Mary Dacey, "followed by him putting his face in Ms. Dacey's face and viciously saying, `I'll knock your face to the ground' as he put his fist up as if to hit her and growled." (See Docket Entry No. 84, at 4). It is undisputed that Plaintiff received a five-day suspension without pay for that incident, which commenced on June 27, 1994. Plaintiff alleges vaguely in her Response that "[t]he Mary K. Dacey incident was followed in 1994 and 1995 by other documented incidents with female employees," and then lists the names of four other female employees whom Galluzzo allegedly harassed, as well as the dates in 1994 and 1995 on which he allegedly harassed them. (See id.) According to Plaintiff, Galluzzo received a formal reprimand for only one of these alleged incidents. However, Plaintiff does not dispute Defendant's assertion of at least two reprimands or disciplinary measures. It is undisputed that on August 21, 1995, Galluzzo's supervisor in the Environmental Division, Neal Smith, requested disciplinary action against Galluzzo on the basis of the aforementioned "incidents." Plaintiff also does not dispute that Galluzzo received a formal reprimand on September 26, 1995, for the "incident" with Sergeant Martinez. Defendant points out that an "incident" also occurred between Galluzzo and a male supervisor, Richard Huber.3

The first incident of alleged harassment involving Plaintiff occurred on October 27, 1998, when Plaintiff exited her supervisor's office and said "Next" to Galluzzo, who was waiting to enter the office. According to Plaintiff, Galluzzo approached to within six inches of her face and shouted "with rage" "Next? There is no next." (See id. at 4). Defendant characterizes Galluzzo's tone as "gruff." (See Docket Entry No. 64, at 5). Plaintiff reported this incident to her supervisors. It is unclear whether Galluzzo was formally counseled for this incident. Plaintiff contends that he was not; Defendant alleges that he was. It appears at the least that a supervisor, Mr. Huber, spoke to him about "the [G]olden [R]ule" in response to Plaintiff's complaint about the incident. (See Galluzzo Dep., Docket Entry No. 88, at 100). After the incident, two supervisors, Mr. Huber and John Culver, contacted Michael Collins, a counselor and manager of the employee assistance program with responsibility for the Public Works Business Center at Fort Campbell. After discussing Galluzzo's behavior with the supervisors, Collins expressed his opinion that Galluzzo was not violent.4 Huber and Culver shared that opinion with Plaintiff.

The second incident5 of alleged harassment occurred on September 28, 1999, when Galluzzo entered Plaintiff's office with questions about information she had provided him. Galluzzo waived papers in Plaintiff's face and demanded the information. After Galluzzo refused Plaintiff's repeated requests that he leave her office, Plaintiff ran out of her office and went to the Deputy Director of the Public Works Business Center, Judith Hudson. Defendant has stated that Plaintiff was visibly upset at the time. Plaintiff reported the incident in a memorandum the next day and requested relocation or reassignment within the Public Works Business Center for herself or Galluzzo.

It is undisputed that on the next day, September 29, Mr. Huser counseled Galluzzo about the incidents with Plaintiff and told him to submit future requests for information through a supervisor.

The next day, September 30, 1999, Galluzzo confronted one of his supervisors, Larry Martin, demanding in a belligerent manner several inches from his face that they meet immediately instead of later in the day. That day, Martin also counseled Galluzzo about these incidents and told him to find training to help improve his ability to work with others.

On October 1, 1999, Plaintiff (at her request) was moved from Building 865 to the Public Works Business Center's computer room in Building 868. On October 22, 1999, Galluzzo entered the computer room where Plaintiff then worked. Defendant avers that he was looking for Richard Adams, a computer technician, and Galluzzo stated in his deposition that he did not know Plaintiff would be there and was surprised to see her. Plaintiff denies that the proffered reason of seeking a computer technician was the motivation for Galluzzo's visit and alleges that when he entered the room, he stood behind Plaintiff and stared at her for several moments without announcing his presence. According to Plaintiff, when other employees entered the room and Plaintiff became aware of Galluzzo's presence, he left without speaking. Plaintiff complained about this incident to her supervisor, Larry...

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