Sherk v. Adesa Atlanta, LLC.

• Decision Date: 31 January 2006
• Docket Number: No. CIV. 3:04-CV-051-JTC.,CIV. 3:04-CV-051-JTC.
• Parties: Beth A. SHERK, Plaintiff v. ADESA ATLANTA, LLC, a Georgia Corporation, Defendant.
• Court: U.S. District Court — Northern District of Georgia

432 F.Supp.2d 1358

Beth A. SHERK, Plaintiff v. ADESA ATLANTA, LLC, a Georgia Corporation, Defendant.

No. CIV. 3:04-CV-051-JTC.

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

January 31, 2006.

COPYRIGHT MATERIAL OMITTED

Kenneth A. Weber, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Nashville, TN, Clint Crosby, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Atlanta, GA, Counsel for the defendant, ADESA Atlanta, LLC.

W. Edwin Litton, Atlanta, GA, Counsel for the plaintiff, Beth Sherk.

ORDER

CAMP, District Judge.

This matter is currently before the Court on Defendant's motion for summary judgment [# 39] and the Magistrate's Report and Recommendation [# 52] thereon. Plaintiff brings this action with three claims under Title VII of the Civil Rights Act of 1964 and one claim under the law of Georgia. The Magistrate recommends granting Defendant's motion as to Plaintiff's Title VII claims and dismissing without prejudice Plaintiff's state law claim.

Neither party has filed objections to the Magistrate's Report and Recommendation. Therefore, pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72, the Court has reviewed it for clear error.

The Court finds no clear error. Accordingly, the Court ADOPTS the Magistrate's Report and Recommendation [# 52] as the opinion of the Court. Defendant's motion for summary judgment [# 39] as to Plaintiff's Title VII claims (counts I-III of the Complaint) is GRANTED. Defendant's motion for summary judgment [# 39] as to Plaintiff's defamation claim (count IV) is DENIED. In recognition that the claims over which the Court has original jurisdiction have been eliminated from this case, the Court declines to exercise supplemental jurisdiction over the remaining state law defamation claim. Accordingly, said claim is DISMISSED without prejudice.

MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

WALKER, United States Magistrate Judge.

This case is presently before the Court on Defendant Adesa Atlanta's Motion for Summary Judgment. Docket Entry [39]. Plaintiff filed a response in opposition to Defendant's motion. Docket Entry [48]. Thereafter, Defendant submitted a reply brief in further support of its motion for summary judgment. Docket Entry [50]. For the reasons set forth more fully below, the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED as to Counts I, II, and III of Plaintiff's Complaint. In addition, because the undersigned recommends granting summary judgment for the Defendant on all claims over which the District Court has original jurisdiction, the undersigned RECOMMENDS that the Court DECLINE to exercise SUPPLMENTAL JURISDICTION over Plaintiff's state law claim for defamation in Count IV of her Complaint.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff filed the instant lawsuit on April 29, 2004, alleging that Defendant Adesa Atlanta, LLC ("Adesa Atlanta") subjected her to a sexual harassment based hostile work environment and retaliated against her for engaging in protected activity, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). (Compl., Docket Entry [1], ¶¶10, 11, 28, 37). In addition, Plaintiff asserts a state law claim against Defendant for defamation based on Mr. Rush's statements to Adesa employees about Plaintiff and the reasons for her termination. (Compl.¶ 45).

Defendant filed the instant Motion for Summary Judgment contending that (1) Plaintiff cannot establish a prima facie case of sexual harassment based hostile work environment under Title VII because favoritism toward a workplace paramour is gender neutral and does not alter the terms or conditions of the plaintiff's employment, and because the instant conduct is not sufficiently severe or pervasive; (2) Plaintiff cannot establish a prima facie case under Title VII for retaliation because Plaintiff cannot show that she held an objectively reasonable belief that she had opposed unlawful conduct by her employer; and (3) Plaintiff's state law defamation claim fails as a matter of law because she cannot prove either the making or the publication of the alleged defamatory statements. (Defendant's Motion for Summary Judgment, [hereinafter "DMSJ"], Docket Entry 39, at 11, 15, 16, 18, 20).

In responding in opposition to Defendant's motion for summary judgment on Plaintiffs two retaliation claims, Plaintiff contends that she can show that she had a subjectively sincere and objectively reasonable belief that unlawful conduct had occurred and that she has direct evidence of retaliatory intent. (Pl. Resp. at 17-18, 19). Plaintiff also argues with respect to her retaliation claims that she based her belief that Defendant had engaged in unlawful conduct on the different treatment she received from male managers, rather than on the favoritism shown to the paramour of her supervisor. (Pl. Resp. at 21). Plaintiff does not respond directly to any of Defendant's arguments on either her sexual harassment based hostile work environment claim or her defamation claim; however, within the discussion of her retaliation claim, Plaintiff admits that "she cannot meet the heavy burden necessary to prove her claim of sexual harassment/hostile work environment." (Pl. Resp. at 17).

In Defendant's Reply, Defendant argues that Plaintiffs admission that she cannot prove her sexual harassment based hostile work environment claim and her failure to respond to any of its arguments on that claim and her defamation claim entitles Defendant to summary judgment. (Def. Reply at 1-2). Defendant further argues with respect to Plaintiff's two retaliation claims that Plaintiff did not have an objectively reasonable belief that her employer's conduct violated the law. In support of its contention, Defendant distinguishes Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir.2001), the principle case upon which Plaintiff relies in her response, and asserts that Plaintiff has not presented any evidence showing Adesa Atlanta treated male managers disparately from female managers or that a male manager in Plaintiff's position would not have been treated as she was treated. (Def. Reply at 3-5).

I. STATEMENT OF FACTS¹

Plaintiff, a female, first began working for Adesa Corporation in February, 2001 at the Adesa Tampa facility in Tampa, Florida. (Pl. Dep. at 8; Sherk Dep. at 18). Adesa Corporation operates numerous wholesale auctions across the country at which banks and car dealers buy and sell used cars to other dealers. (Sherk Dep. at 8). Those auction facilities operated by Adesa Corporation include both Adesa Tampa and Defendant Adesa Atlanta. While the organizational structure varies between facilities, typically, a general manager heads each facility, and, depending on the general manager's needs, an assistant general manager assists him. (Sherk Dep. at 10). Each facility then employs several other managers and regular employees, such as sales employees sales representatives, and account managers. (Sherk Dep. at 10).

When Plaintiff first began working at the auction facility at Adesa Tampa, Adesa Corporate divided the country into eight regions with a regional vice president overseeing each region. (Sherk Dep. at 43; Price Dep. at 15). At that time, Mr. Howard Price was the regional vice president for the region of the state of Florida and Mr. David Bynum was the regional vice president for the south-eastern region encompassing the state of Georgia. (Sherk Dep. at 52; Price Dep. at 8). The general manager of each facility reports to the regional vice president, who functions as the corporate link between individual facilities and their management teams and the Adesa corporate office in Indianapolis. (Price Dep. at 9).

Adesa Tampa originally hired Plaintiff as a sales employee, but Mr. Tim Sherk, who was the assistant general manager of Adesa Tampa at that time, promoted Plaintiff to consignment sales and marketing manager around July, 2002 based on her performance.² (Compl. ¶ 1; Pl. Dep. at 9; Sherk Dep. at 19, 20). In this management position, Plaintiffs responsibilities expanded from soliciting dealers to do business at the Adesa Tampa auction facility to include retaining a franchise dealer base and increasing the rate and volume of consignment cars. (Pl. Dep. at 9). While at Adesa Tampa as the consignment sales and marketing manager, numerous senior management officials throughout the Adesa family thought Plaintiff performed very well. (Pl. Dep. at 12; Sherk Dep. at 18; Price Dep. at 18).

Around April, 2003, Plaintiff began working as the consignment sales manager for Adesa Atlanta, which had been experiencing low consignment rates. (Defendant's Statement of Undisputed Material Fact [hereinafter "DSUF"] 1; Pl. Dep. at 12-13, 37; Sherk Dep. at 25-26). Shortly thereafter, Ms. Lisa Cody was transferred to Plaintiffs department as a consignment sales representative. (Pl. Dep. at 33; Rush Dep. at 12, 20). Plaintiff had learned through office rumor that Mr. David Rush, the general manager of Adesa Atlanta and therefore Plaintiffs direct supervisor, was involved in a sexual relationship with Ms. Cody. (Pl. Dep. at 34, 35). Adesa Corporation prohibited such sexual relationships between supervisors and subordinate employees and explicitly outlined that prohibition in its Ethics Handbook. (Bynum Dep. at 18; Exh. 2). The Ethics Handbook reads in relevant part:

Employees in supervisory positions are strictly prohibited from engaging in consensual romantic or sexual relationships with any employee reporting directly or indirectly to them. [Adesa] established this policy to avoid the following situations: violation of sexual harassment law; sexual harassment complaints; uncomfortable working conditions; morale problems among other employees; the appearance of impropriety; and interference of or other distractions from the Company's business interests.

(Bynum Dep. at 18, Exh. 2).

Adesa...