Scelta v. Delicatessen Support Services, Inc.

• Decision Date: 09 March 2000
• Docket Number: No. 8:98-CV-2578-T-17B.,8:98-CV-2578-T-17B.
• Citation: 89 F.Supp.2d 1311
• Parties: Bernadette SCELTA, Plaintiff, v. DELICATESSEN SUPPORT SERVICES, INC., Boar's Head Provisions Co., Inc., and Robert S. Martin, Defendants.
• Court: U.S. District Court — Middle District of Florida

89 F.Supp.2d 1311

Bernadette SCELTA, Plaintiff, v. DELICATESSEN SUPPORT SERVICES, INC., Boar's Head Provisions Co., Inc., and Robert S. Martin, Defendants.

No. 8:98-CV-2578-T-17B.

United States District Court, M.D. Florida, Tampa Division.

March 9, 2000.

Order Denying Reconsideration March 27, 2000.

David P. Montgomery, The Montgomery & Walch Law Firm, Bradenton, FL, for Bernadette Scelta, plaintiff.

Kenneth George Turkel, Mitchell C. Robiner, Williams, Reed, Weinstein, Schifino & Mangione, P.A., Tampa, FL, William G. Salim, Jr., Moskowitz, Mandell, Salim & Simowitz, P.A., Ft. Lauderdale, FL, Jacqueline G. Veit, Martin S. Hyman, Golenbock, Eiseman, Assor & Bell, New York City, for defendants.

ORDER

KOVACHEVICH, District Judge.

THIS CAUSE is before the Court on Defendants, Delicatessen Support Services, Inc.'s [hereinafter "Delicatessen"], and Boar's Head Provisions Co., Inc.'s [hereinafter "Boar's Head"], Motion for Summary Judgment on Claims of Sexual Harassment, (Dkt.77), filed on February 10, 2000, Plaintiff, Bernadette Scelta's, Opposition thereto, (Dkt.83), filed on February 22, 2000, Defendants' Motion for Leave to File Reply, (Dkt.88), filed on March 1, 2000, and Defendant's Motion for Leave to File Reply, (Dkt.89), filed on March 1, 2000.

BACKGROUND

Plaintiff originally brought this action against Defendants in the Circuit Court, in and for Sarasota County, Florida, on December 16, 1998. (Dkt.2). Defendants filed a Notice of Removal, on December 16, 1998, based on federal question jurisdiction. This case was subsequently removed to the United States District Court for the Middle District of Florida. (Dkt.1).

Plaintiff's Complaint alleges that Delicatessen is a subsidiary of Boar's Head, or that it is controlled by Boar's Head, has interlocking ownership and control, and has engaged in a common enterprise with Boar's Head. The alleged common enterprise between Delicatessen and Boar's Head acts as a wholesale food distributor and it, as well as each component of the common enterprise, employs over twenty-five (25) persons.

Plaintiff states that she was an employee of The Frank Brunckhorst Company, Boar's Head, and Delicatessen. While Plaintiff was an employee of The Frank Brunckhorst Company, Plaintiff was assigned to establish a principal place of operation for Boar's Head and Delicatessen in Sarasota County, Florida. Joseph Egan served as Plaintiff's supervisor and as an agent of Boar's Head and Delicatessen. Defendant Martin was also an agent of Boar's Head and Delicatessen and had the duty of supervising the employment decisions of Egan. Plaintiff states that she performed her duties, while employed with Boar's Head and Delicatessen, in an exemplary manner and never received a written or oral reprimand.

While residing in Sarasota County, Florida, Plaintiff and Egan, her immediate supervisor, had a short affair, which included sexual relations. Plaintiff states that Egan was married and did not want his wife or his co-workers to gain knowledge of the affair.

Counts I and II of Plaintiff's Complaint are claims for sexual discrimination against Boar's Head and Delicatessen. Count I alleges a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e [hereinafter "Title VII"]. Count II alleges a violation of the Florida Civil Rights Act of 1992, which is contained in Chapter 760 of the Florida Statutes [hereinafter "FCRA"]. Counts I and II assert that the actions and inactions of Boar's Head and Delicatessen constituted sexual harassment and a sexually hostile work environment.

Count IV(A) of Plaintiff's Complaint is a claim for battery against Defendant Martin. Plaintiff states that Defendant Martin touched Plaintiff without express or implied consent. As a result of the battery, Plaintiff alleges she endured great mental suffering, was forced to terminate her employment, suffered loss of opportunity for advancement, and suffered loss of her personal and professional reputation.

Plaintiff states that she has complied with all jurisdictional prerequisites for filing a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the FCRA, Chapter 760, Florida Statutes. Specifically Plaintiff states that on or about July 6, 1998, Plaintiff filed a charge of discrimination against her "employer," Boar's Head, Delicatessen, Egan, and Defendant Martin, with the EEOC and the Florida Commission of Human Relations. On or about July 13, 1998, the Florida Commission on Human Relations transferred Plaintiff's charge of discrimination to the EEOC, pursuant to Florida's status as a deferral state and the federal and state work share agreement. On or about August 27, 1998, the EEOC notified Plaintiff, after conducting its own investigation, that Plaintiff had a right to sue within ninety (90) days of her receipt of the notification. Plaintiff filed suit within the ninety (90) days allotted by the EEOC notice.

On June 3, 1999, this Court granted in part Defendants' Motions to Dismiss, (Dkts.15, 18, 22, 24), which dismissed Counts III, IV(B), V, and VI of Plaintiff's Complaint. In response to the Court's Order on Defendants' Motion to Dismiss, Defendants, Delicatessen, Boar's Head, and Martin, filed a Renewed Motion to Dismiss, (Dkt.54), which was subsequently denied by this Court. On July 26, 1999, Defendant Martin filed a Motion for Summary Judgment requesting that this Court enter judgment for Defendant Martin on Count IV(A) of Plaintiff's Complaint. (Dkt.51). On September 24, 1999, Defendant Martin filed a Supplemental Motion for Summary Judgment. (Dkt.58). The Court denied Defendant Martin's Motion for Summary Judgment and Supplemental Motion for Summary Judgment on October 7, 1999. (Dkt.67).

Standard of Review

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

The 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 of 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. The moving party is `entitled to judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of the case with respect to which that party has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of genuine issues of material fact. See id. That burden can be discharged by "showing ... that there is an absence of evidence to support the non-moving party's case." Id. at 323, 325, 106 S.Ct. 2548.

Issues of fact are "`genuine' only if a reasonable jury considering the evidence presented could find for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those which will affect the outcome of the trial under governing law. See id. at 248, 106 S.Ct. 2505. In determining whether a material fact exists, the court must consider all the evidence in a light most favorable to the non-moving party. See Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. See Hayden v. First Nat'l Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir. 1979) (quoting Gross v. Southern Railway Co., 414 F.2d 292, 297 (5th Cir.1969)).

Although factual disputes preclude summary judgment, the "mere possibility that factual disputes may exist, without more, is not sufficient to overcome a convincing presentation by the party seeking summary judgment." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). When a party's response consists of "nothing more than a repetition of his conclusional allegations," summary judgment is not only proper but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.1981).

Discussion

Defendants allege that summary judgment is justified because: Plaintiff failed to file a federal or state charge of discrimination within the time periods required under Title VII and the FCRA; Plaintiff conceded to having a consensual sexual affair with another co-worker; Plaintiff has failed to allege and prove that she was retaliated against for engaging in any form of statutorily-protected expression; and neither Title VII nor the FCRA confer a cause of action upon an employee who claims to have been discriminated against after having engaged in a purely consensual affair with a supervisor.

I. Statute of Limitations

Defendants main argument in support of summary judgment is that many of the events and conduct complained of are barred by the required three hundred (300) day statute of limitation for filing a charge of discrimination under Title VII.

Title VII requires that a charge of discrimination be filed with the EEOC within one hundred eighty (180) days of the alleged misconduct, or if the plaintiff has filed a charge of discrimination with a state agency, within three hundred (300) days of the alleged discriminatory actions. See 42 U.S.C. § 2000e-5(e)(1). The FCRA requires that a charge of discrimination be filed within three hundred sixty-five days (365) days of the alleged discriminatory conduct. Absent an exception from the statute of limitations, only the...