Pospicil v. The Buying Office, Inc.

• Decision Date: 30 September 1999
• Docket Number: Civil Action No 1:98-CV-1280-JOF.
• Citation: 71 F.Supp.2d 1346
• Parties: Ruthie A. POSPICIL, Plaintiff, v. THE BUYING OFFICE, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

71 F.Supp.2d 1346

Ruthie A. POSPICIL, Plaintiff, v. THE BUYING OFFICE, INC., et al., Defendants.

Civil Action No 1:98-CV-1280-JOF.

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

September 30, 1999.

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Perry Pearce Benton, Alpharetta, GA, Marion Francis Walker, Birmingham, AL, for Plaintiff.

Cary Ichter, Steven Kushner, Meadows, Ichter & Trigg, Atlanta, GA, for Defendants.

ORDER

FORRESTER, District Judge.

This matter is before the court on the Report and Recommendation of Magistrate Judge Joel M. Feldman, Plaintiff's motion for an extension of time in which to file objections, and Plaintiff's objections to the Report and Recommendation.

I. STATEMENT OF THE CASE

A. Procedural History

Plaintiff, Ruthie A. Pospicil, filed the instant lawsuit on May 5, 1998, claiming violations of both federal and state law arising out of her employment relationship with Defendants, The Buying Office, Inc. ("TBO"), and its chief executive officer ("CEO"), Jairaj Abuvala. Plaintiff seeks relief on eight counts. First, Plaintiff claims that Defendant TBO created, maintained, and condoned a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Second, Plaintiff claims that the terms and conditions of her employment changed when Defendants intentionally treated her differently than her male counterparts in violation of Title VII. Third, Plaintiff asserts a claim under the Equal Pay Act, 29 U.S.C. § 206(d), alleging that she was paid a lower salary than that given to male employees who performed substantially similar jobs and who possessed equal or lower qualifications. In addition to these federal claims, Plaintiff asserts the following claims based on Georgia law: (1) negligent hiring, retention, training, and supervision; (2) invasion of privacy; (3) intentional infliction of emotional distress; (4) slander per se; and (5) slander per quod.

On November 9, 1998, Defendants filed a motion for summary judgment as to all claims. The Magistrate Judge issued a Report and Recommendation dated August 20, 1999, in which he recommends granting Defendants' motion with regard to Plaintiff's federal claims and declining jurisdiction with regard to her state law claims. On August 31, 1999, Plaintiff filed a motion requesting an extension of time in which to file her objections, and she filed those objections on September 10, 1999.

B. Background Facts

TBO, located in Atlanta, is a manufacturer's representative in the gift industry. Defendant Jairaj Abuvala ("Abuvala") is a principal shareholder of the company and acts as its CEO. In that role, Abuvala functions as TBO's ultimate decision maker. In addition to Abuvala, the management team of TBO has three other members, all of whom are female — Candace Abuvala, President; Debbie O'Hanion, Vice-President for Sales; and Patricia Coley, General Manager. In 1997, female employees comprised the majority of TBO's workforce. TBO requires its sales representatives to attend sales meetings and trade shows in Atlanta four times per year and to maintain contact with the Atlanta office through weekly telephone calls and sales reports. Additionally, TBO treats the first ninety days of employment as an introductory period. Pursuant to company policy, new employees are evaluated at the end of this introductory period and, if their performance is found to be satisfactory, they are offered permanent employment.

Plaintiff was hired by TBO in November 1996 as a sales representative for a sales territory covering the northern section of Alabama. Plaintiff attended a sales meeting in Atlanta from December 5-8, 1996, and she attended training sessions in Atlanta from December 9-13, 1996. Plaintiff was paid $50 per day for the nine days she attended the sales meeting and training sessions, for a total amount of $450. Plaintiff did not begin her introductory period, however, until January 1997, at which time she received a salary of $2,000 per month, including expenses.

TBO hired Bill Ullian as a sales representative in January 1997, and he received $850 dollars for training, computed at a rate of $50 per day for seventeen days. Ullian's training lasted this long because it included working at a trade show held in January 1997. The amount of training time an employee undergoes is a direct result of the employee's date of hire. Beginning in February 1997, Ullian was paid a salary of $2,000 per month, including expenses. In March 1997, Ullian was paid an additional $90 for three overnight stays while on the road, pursuant to TBO policy allowing for $30 per night for an overnight stay more than ninety miles from home. Beginning in May 1997, upon completion of his ninety-day introductory period, Ullian received a salary of $2,500 per month, including expenses.

TBO also employed Jerry White as a sales representative. White was hired in April 1995 and represented a sales territory encompassing southern Alabama, southern Mississippi, and the Florida panhandle. White's starting salary was $18,000 per year plus $800 per month in expenses. After a year with TBO, White's salary was increased due to his sales performance. In 1997, White was paid a salary of $36,000, including expenses. In addition to working as a sales representative, White acted as Plaintiff's mentor after she began working for TBO.

During the course of her employment with TBO, Plaintiff traveled to Atlanta three times for a total duration of approximately twenty-five days. These trips included the December 1996 sales meeting and training sessions, the January 1997 sales meeting and trade show, and another sales meeting and show in March 1997. During sales meetings and trade shows, TBO requires its sales representatives to attend dinners and luncheons, at which Abuvala is present. During these meals, Plaintiff testified that Abuvala's statements were filled with innuendo. Plaintiff specifically recalled Abuvala discussing a product made of blown glass and saying, "Oh, how they blow it." (Pospicil Depo., pp. 66-67). Also, TBO had a program, referred to as "joke-a-day," where employees told jokes at the sales meeting luncheons. Abuvala, the other members of TBO's management team, Plaintiff, and several other sales representatives, both male and female, told jokes. While O'Hanion testified that she and several other attendees told off-color jokes, Plaintiff testified that only Abuvala told jokes that she considered "dirty."¹ (O'Hanion Depo., pp. 94-95; Pospicil Depo., p. 68). Additionally, during one of these luncheons, Abuvala passed around a picture of a cat playing with a frog and declared, "Sometimes it takes a little pussy to close the sale." One of TBO's sales representatives had written the phrase on the picture, and Abuvala later hung the picture on a bulletin board in Coley's office. Plaintiff also testified that, during the March 1997 sales meeting, Abuvala passed around a picture of a female beauty contestant to all the sales representatives, saying that he had engaged in sexual relations with the woman. (Pospicil Depo., pp. 176-78). Plaintiff was present during the sales meetings and activities that accompanied them and therefore heard Abuvala's jokes and use of foul language. Abuvala did not, however, direct any innuendo, foul language, or off-color jokes to Plaintiff individually at these meetings.

In addition to telling off-color jokes and using innuendo, Abuvala used the word "fuck" in everyday conversation around the workplace, in the presence of both men and women. At some point during the December 1996 sales meeting, Abuvala allegedly informed the sales representatives that he had been "fucked in the ass by three whores in Florida," referring to three former sales representatives who had failed to return product samples to TBO upon their termination. (Millen Aff., p. 1; Pospicil Aff., p. 2). Plaintiff testified that she did not know whether the sales representatives to which Abuvala referred were male or female, but that Abuvala alluded that they were women. (Pospicil Depo., pp. 64, 216). Plaintiff testified that Abuvala also used the term "blowjob" on a continual basis, often talked about sexual actions, and referred to TBO's female employees as his "harem." (Pospicil Depo., pp. 63, 105). Plaintiff further testified that sometime during the January 1997 sales meeting, she confronted Abuvala in his office, telling him that she would appreciate it if he refrained from using vulgar language when addressing her. Abuvala allegedly responded by saying, "This is my fucking business and I'll run it the way I want to." (Pospicil Depo., p. 78).

Plaintiff also testified that, on one occasion, she forgot her name tag and informed Abuvala of that fact. The next day, upon seeing Abuvala, Plaintiff pointed to her name tag, which was roughly two to three inches below her left shoulder. Plaintiff testified that Abuvala asked her, "What are you trying to show me there?" (Pospicil Depo., pp. 79-82). Plaintiff testified that she understood this comment to be a reference to her breast. (Pospicil Depo., p. 84). Abuvala did not request any sexual favors from Plaintiff, did not suggest that he was sexually interested in Plaintiff, and never touched Plaintiff. No one at TBO, including Abuvala, ever threatened Plaintiff with physical harm. Plaintiff testified, however, that she was intimidated by Abuvala, was nervous during her time with TBO, and had trouble sleeping. (Pospicil Depo., pp. 120-21, 125-26).

Sometime after the January 1997 sales meeting, Plaintiff called TBO to speak with O'Hanion about a large sales order she received from a customer. While Plaintiff was on the phone with O'Hanion, Abuvala somehow became a part of the conversation and challenged Plaintiff's report. Plaintiff and Abuvala apparently disagreed about whether the order should have been classified as a "show" order or...