Penn v. Citizens Telecom Servs. Co.

• Citation: 999 F.Supp.2d 888
• Decision Date: 26 February 2014
• Docket Number: Civil Action No. 2:12–cv–07311.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Laura M. PENN, Plaintiff, v. CITIZENS TELECOM SERVICES COMPANY, LLC, Defendant.

999 F.Supp.2d 888

Laura M. PENN, Plaintiff

v.CITIZENS TELECOM SERVICES COMPANY, LLC, Defendant.

Civil Action No. 2:12–cv–07311.

United States District Court, S.D. West Virginia.

Feb. 26, 2014.

Michael T. Clifford, Richelle K. Garlow, Law Office of Michael T. Clifford, Charleston, WV, for Plaintiff.

Mary R. Rowe, John David Fenwick, Goodwin & Goodwin, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, District Judge.

Pending is Defendant Citizens Telecom Services Company, LLC's (“Citizens Telecom”) motion for summary judgment. For the reasons that follow, the Court GRANTS the motion [ECF 58].

I. BACKGROUND

A. Factual Background

The facts, taken in the light most favorable to the Plaintiff, are as follows.¹ Plaintiff, Laura Penn, (“Penn”), is an employee of Defendant Citizens Telecom and works as a sales consultant at a call center in Charleston, West Virginia. (ECF 8 at 1; ECF 10 at 1; ECF 58–1 at 2.) During the time relevant to this action, Penn initially worked on a team supervised by Cory Kidder (“Kidder”). (ECF 58–1 at 8; ECF 58–6 at 1011.)

At some point during the time in which she worked for Kidder, another employee, Sheri Johnson (“Johnson”), told Penn that Kidder “made a comment about [Penn's] breasts in front of several other employees.” (58–1 at 9.) Specifically, Kidder stated, “What I wouldn't do to get my face in those breasts.” (ECF 58–1 at 10.) When Kidder made this statement, he was sitting with Johnson and another employee, Casey Jarrett (“Jarrett”). (ECF 58–1 at 10.) Although Penn was not present (id. ), she was “very obviously kind of appalled” that Kidder had made such a comment (ECF 58–1 at 9), and she found it humiliating because he did it in front of her coworkers (ECF 58–1 at 16).²

Penn did not confront Kidder or otherwise say anything to him about the comment. (ECF 58–1 at 15.) At some point after Kidder made the comment, however, Penn indicated to someone with management authority at Citizens Telecom that she wanted a different supervisor and such request was granted. (ECF 58–1 at 12–16.) Also at some point thereafter, Kidder was fired. (ECF 58–2 at 2; ECF 58–5 at 17–18.)

After filing this lawsuit, “management ... started to be more extra attentive” towards Penn.³ (ECF 58–1 at 3.) By way of example, Penn explained in her deposition that once a manager called her into her office and reprimanded her for failing to offer internet service to an elderly customer who did not own a computer. (ECF 58–1 at 4–5.) Penn further explained that this manager suggested that they needed to get sales up and there was a lot of sales pressure currently going on. (ECF 58–1 at 5.)

Kidder did not do anything else towards Penn in a “sexually harassing way” (ECF 58–1 at 15), and Penn indicated during her deposition that the principal basis of her sexual harassment claim “is the single comment that [Kidder] made about putting his head in [Penn's] breasts” (ECF 58–1 at 15–16). Nonetheless, Penn has also described other instances in which Kidder allegedly behaved inappropriately, which are potentially relevant here and include:

• Kidder once did not say anything to Penn. (ECF 58–1 at 13.) Penn stated at her deposition that she did not think that this was in any sexual harassment. (ECF 58–1 at 13.)

• On another occasion, Kidder said goodbye several times to another female employee. (ECF 58–1 at 13–14.) Penn stated during her deposition that she did not think such behavior was sexual harassment. (ECF 58–1 at 13.)

• Another time, Kidder received a text message from a female employee who wanted to meet him for drinks, and Kidder asked Jarrett what he should do. (ECF 58–1 at 14.) Penn stated that she thought such behavior was inappropriate, but “it has nothing to do with me personally having a complaint.” (ECF 58–1 at 14.)

• Kidder once had a conversation with a female Frontier employee about a one-night stand that she had had. (ECF 58–1 at 14.) Penn stated at her deposition that this episode was inappropriate, but not part of a hostile work environment for her. (ECF 58–1 at 14.)

Additionally, at some point Penn appears to have learned that another employee, Kimberly Whittington (“Whittington”), had previously filed a complaint against Kidder accusing him of sexual harassment.⁴ (ECF 58–1 at 15; ECF 58–7 at 20.) Whittington's complaint, or at least the conduct underlying it, appears to have arisen at some point during 2011, likely in either the spring of 2011 or between August and November of 2011. (ECF 58–4 at 3; 58–5 at 2; ECF 58–6 at 3, 89; ECF 58–7 at 4, 16; ECF 58–8 at 2.) Penn did not begin working on Kidder's team until the beginning of 2012. (ECF 58–1 at 8; ECF 58–6 at 2–3.)

B. Procedural Background

Penn initially filed a “complaint” with the Equal Employment Opportunity Commission, which was rejected on August 6, 2012. (ECF 4 at 3.) Thereafter, on November 2, 2012, Penn filed her Complaint in this Court naming Frontier Communications of West Virginia, Inc. as defendant. (ECF 1 at 1.)

On February 5, 2013, Penn filed her First Amended Complaint naming as defendant “Citizens Telecommunications Company of West Virginia, a West Virginia Corporation dba Frontier Communications of West Virginia, Inc.” (ECF 4 at 1.) Penn's First Amended Complaint was otherwise substantially identical to her Complaint. (ECF 1; ECF 4.)

Later, on March 7, 2013, the parties filed a stipulation substituting Citizens Telecom as defendant for Frontier Communications and further stipulating that Citizens Telecom is Plaintiff's employer and would be the Frontier corporate entity liable to Plaintiff, as compared to any affiliated entities, in the event that Plaintiff prevailed in this civil action. (ECF 10 at 1.)

After discovery was completed (ECF 18 at 1–2), Citizens Telecom filed its motion for summary judgment (ECF 58). Penn filed a response (ECF 60), to which Citizens Telecom replied (ECF 61).

II. CHARACTERIZING THE CLAIMS IN THE FIRST AMENDED COMPLAINT

Because there has been some confusion regarding what causes of action are asserted in Penn's First Amended Complaint, the Court finds it necessary to first review that pleading. For the reasons that follow, the Court concludes that Penn's First Amended Complaint is properly read as asserting four causes of action.

The first sentence of the First Amended Complaint states that it is brought, as pertinent here, “pursuant to 42 U.S.C. Section 2000e et. seq.,... [and] arises out of the [Citizens Telecom's] allowance of a hostile work environment and sexual harassment of [Penn]....” (ECF 4 at 1.) Immediately thereafter, the First Amended Complaint states that “[t]his Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343, 42 U.S.C 2000e et seq., etc.” (ECF 4 at 1.) The First Amended Complaint then proceeds to state facts in support of a “hostile work environment.” (ECF 4 at 2–3.) Accordingly, the First Amended Complaint appears to invoke this Court's jurisdiction on the basis of raising a hostile work environment claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).⁵

The First Amended Complaint also includes a section entitled “State Law Claims,” in which Penn states four additional “counts”: (1) “sexual harassment / hostile work” pursuant to West Virginia Code § 5–11–1 et seq. and West Virginia Code of State Regulations § 77–4–2.2 (ECF 4 at 3); (2) “vicarious liability” (ECF 4 at 3–4); (3) “insulting words” as defined by West Virginia Code § 55–7–2 (ECF 4 at 4); and (4) “outrageous conduct / intentional infliction [of emotional distress]” (ECF 4 at 5).

In its motion for summary judgment, however, Citizens Telecom moved “for summary judgment as against [Penn's] Complaint in its entirety,” stating that “Plaintiff has asserted three causes of action: (1) hostile work environment sexual harassment, (2) intentional infliction of emotional distress, and (3) violation of West Virginia's ‘insulting words statute[’].” (ECF 58 at 1.) (Emphasis added.) Additionally, in its accompanying memorandum of law, Citizens Telecom reiterated its conclusion that Penn had raised “three causes of action.” (ECF 59 at 15.) (Emphasis added.) With respect to Penn's “hostile work environment sexual harassment” cause of action, Citizens Telecom's memorandum addressed only such a claim made under the West Virginia Human Rights Act, W. Va.Code, § 5–11–1 et seq (“WVHRA”). (ECF 59 at 610.)

In light of the discrepancy regarding the existence of a Title VII claim, the Court directed the parties that unless otherwise advised the Court would construe Citizen Telecom's motion for summary judgment as also challenging Penn's Title VII claim, to the extent that such a claim was made. (ECF 65.) On February 18, 2014, Citizen's Telecom responded and asserted that because the federal law of sexual harassment closely parallels that of West Virginia, to the extent that Penn's First Amended Compliant pleaded a Title VII claim, that claim should be dismissed for the same reasons as Penn's WVHRA hostile work environment claim. (ECF 66 at 1–3.) Penn did not respond.

Although Penn's First Amended Complaint is not a model of clarity, the Court finds that in light of her citations of “42 U.S.C. § 2000” and invocation of this Court's federal question jurisdiction, Penn sought to assert a claim under Title VII.

With respect to her state law claims, the Court agrees with Citizens Telecom's characterization of those claims, namely that Penn has stated claims of sexual harassment under West Virginia law, a violation of West Virginia's “insulting words” statute, and intentional infliction of emotional distress. (ECF 58 at 1; ECF 59 at 1.)

To the extent that Penn has asserted a separate “state law claim” or “count” of “vicarious liability”⁶ (ECF 4 at 34), however, the Court observes that vicarious liability is a theory of liability by which Penn may seek to hold Citizens Telecom liable for the actions of its employee, Kidder. It is not a separate cause of action. See McCullough v. Liberty...