Simon v. Morehouse School of Medicine, Civ. A. No. 1:92-CV-3049-JOF.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Writing for the CourtFORRESTER
Citation908 F. Supp. 959
Docket NumberCiv. A. No. 1:92-CV-3049-JOF.
Decision Date06 September 1995
PartiesAvis D. SIMON, Plaintiff, v. MOREHOUSE SCHOOL OF MEDICINE, et al., Defendants.

908 F. Supp. 959

Avis D. SIMON, Plaintiff,
v.
MOREHOUSE SCHOOL OF MEDICINE, et al., Defendants.

Civ. A. No. 1:92-CV-3049-JOF.

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

September 6, 1995.


908 F. Supp. 960
COPYRIGHT MATERIAL OMITTED
908 F. Supp. 961
COPYRIGHT MATERIAL OMITTED
908 F. Supp. 962
Alexander McArthur Irvin, Sandra Kaye, Stuart, Irvin, Stanford & Kessler, Atlanta, GA, for plaintiff

Phillip A. Bradley, Long, Aldridge & Norman, Atlanta, GA, for defendant Morehouse.

Mary Diane Owens, Sidney F. Wheeler, Quinton Spencer Seay, Long, Weinberg, Ansley & Wheeler, Atlanta, GA, for defendants Morehouse and Braithwaite.

Mairen C. Kelly, Joseph Michael English, Fisher & Phillips, Atlanta, GA, for defendant Harris.

908 F. Supp. 963

ORDER

FORRESTER, District Judge.

This matter is before the court on Magistrate Judge Joel M. Feldman's Report and Recommendation. No objections have been filed by the parties.

In his Report and Recommendation, Magistrate Judge Feldman has recommended that Defendant Ronald Braithwaite's motion for summary judgment 55-1 be GRANTED due to failure to perfect service. In addition, the Magistrate Judge has recommended that Defendant Morehouse School of Medicine's motion for summary judgment 59-1 be DENIED due to disputes of material fact. After careful consideration, the Magistrate Judge's Report and Recommendation is ADOPTED. The parties are reminded that the Magistrate Judge has ORDERED that the consolidated pretrial order be filed within thirty (30) days of the date of entry of this order.

SO ORDERED.

MAGISTRATE JUDGE'S REPORT, RECOMMENDATION AND ORDER

FELDMAN, United States Magistrate Judge.

This is an employment discrimination case filed by a female former employee of the defendant Morehouse School of Medicine (hereafter "Morehouse"). The plaintiff alleges that (1) during her employment in a clerical capacity with Morehouse's Health Promotion Resource Center ("HPRC") from January, 1991 until March, 1992, she was subjected to sexual harassment by Dr. Braithwaite, then director of the HPRC, and Harris, a co-worker at HPRC (including, inter alia, a sexual assault by Harris), which harassment created a hostile work environment,1 in violation of Title VII of the Civil Rights Act, as amended (42 U.S.C. § 2000e et. seq.); (2) said harassment created intolerable working conditions, which resulted in her constructive discharge in March, 1992, also in violation of Title VII;2 (3) said harassment, under Georgia law, constituted an intentional infliction of emotional distress upon the plaintiff, for which all three defendants are liable; (4) said harassment, under Georgia law, constituted an invasion of the plaintiff's privacy, for which all three defendants are liable; (5) having been aware of Harris' propensity to sexually harass the plaintiff prior to Harris' alleged rape of the plaintiff, defendants Morehouse and Braithwaite are liable under Georgia law for the plaintiff's injuries resulting from the sexual assault, under the tort of negligent retention and supervision; and (6) Harris is liable to the plaintiff for assault and battery under Georgia law.

Presently pending before the undersigned are the Motions for Summary Judgment filed by Braithwaite Doc. 55 and Morehouse Doc. 59; the plaintiff's response Doc. 64, and the defendants' replies thereto Docs. 67, 68. Harris has not filed a summary judgment motion, and this Court will not consider the three state law claims against him further.

PART TWO

THE ISSUES
1. WHETHER BRAITHWAITE IS ENTITLED TO SUMMARY JUDGMENT
908 F. Supp. 964
BECAUSE THE PLAINTIFF HAS FAILED TO EFFECT PERSONAL SERVICE UPON HIM?
2. WHETHER DISPUTED ISSUES OF MATERIAL FACT PRECLUDE THE GRANT OF SUMMARY JUDGMENT ON THE PLAINTIFF'S CLAIM OF SEXUAL HARASSMENT AGAINST MOREHOUSE?
3. WHETHER DISPUTED ISSUES OF MATERIAL FACT PRECLUDE THE GRANT OF SUMMARY JUDGMENT ON THE PLAINTIFF'S CLAIM OF CONSTRUCTIVE DISCHARGE AGAINST MOREHOUSE?
4. WHETHER THE PLAINTIFF'S STATE LAW CLAIMS ARE BARRED BY THE EXCLUSIVITY PROVISION OF THE GEORGIA WORKERS' COMPENSATION ACT?
5. WHETHER DISPUTED ISSUES OF MATERIAL FACT PRECLUDE THE GRANT OF SUMMARY JUDGMENT ON THE PLAINTIFF'S STATE LAW CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS?
6. WHETHER DISPUTED ISSUES OF MATERIAL FACT PRECLUDE THE GRANT OF SUMMARY JUDGMENT ON THE PLAINTIFF'S STATE LAW CLAIM OF INVASION OF PRIVACY AGAINST MOREHOUSE?
7. WHETHER DISPUTED ISSUES OF MATERIAL FACT PRECLUDE THE GRANT OF SUMMARY JUDGMENT ON THE PLAINTIFF'S STATE LAW CLAIM OF NEGLIGENT RETENTION AGAINST MOREHOUSE?

PART THREE

THE FACTS

Accepting the plaintiff's allegations in her response to the summary judgment motions as true, Harris and Braithwaite—Harris' supervisor —engaged in the following conduct toward the plaintiff from April, 19913 through February, 1992.4

In April, 1991, Harris began making sexual advances to the plaintiff. Harris told her that he was Braithwaite's "right-hand man" and made other statements to the plaintiff indicating that he had influence with Braithwaite. In part because of Harris' statements about his influence with Braithwaite, in April, the plaintiff entered a consensual sexual relationship with Harris (i.e. they had sexual intercourse which the plaintiff testified that Harris did not force upon her See Plaintiff's Deposition ("P.D."), 115-16). Harris denies that he and the plaintiff had such a sexual relationship.

In May, plaintiff insisted on ending the sexual relations and the affair. In response, Harris became hostile, and thereafter, he cursed at the plaintiff, made belittling comments about her to other employees and stared at her, all of which made her uncomfortable in the workplace. P.D., pp. 143-46, 155-56, 164-79.

Plaintiff reported all of the foregoing occurrences to her supervisor, Dr. Leonard Jack, Jr.5 P.D., pp. 97-99, 108-09, 138, 181. In May, the plaintiff also told Braithwaite that Harris was harassing her and was making belittling comments about her to co-workers. P.D., pp. 180-185.

Thereafter, the plaintiff continued to feel uncomfortable in the workplace with Harris. Specifically, Harris continued to make belittling comments about the plaintiff to other co-workers, and continued to stare at her. Again, the plaintiff reported Harris' conduct

908 F. Supp. 965
and her feeling that she was being harassed to Dr. Jack. P.D., pp. 185-88

In June, 1991, Braithwaite scheduled a meeting with Harris, the plaintiff and Dr. Jack to discuss reports of conflict in the workplace between Harris and the plaintiff. At that meeting, Harris accused the plaintiff of spreading rumors in the workplace that the two were having a sexual relationship. After a brief discussion among the parties, Braithwaite instructed the plaintiff and Harris that the personal conflicts between them were inappropriate and would not be tolerated in the work environment. P.D., pp. 188-92; Braithwaite Deposition, pp. 104-106.

It is undisputed that between June and October, 1991, Harris did not engage in any sexually harassing conduct toward the plaintiff. However, the plaintiff alleges that Braithwaite did. Specifically, after the meeting (still in June, 1991), Braithwaite approached the plaintiff in the workplace and asked her if the rumor circulating that she and Harris had a sexual relationship was true. Braithwaite also asked her "how big" Harris was and if Harris was good in bed. Braithwaite's comments upset and angered the plaintiff, who reported the incident to Dr. Jack. P.D., pp. 195-99.

On July 16, 1991, the plaintiff told Braithwaite that she did not agree with a plan to re-locate secretarial employees within the HPRC office. The next day, Braithwaite sent the plaintiff a memo in which he accused her of "disrespectful and obnoxious" behavior in front of other employees, and instructed her to refrain from "such insubordination and disrespect in the future." Braithwaite Deposition, Exh. 6. Braithwaite did not send memoranda to any other employees using that sort of language. Braithwaite Deposition, p. 240.

In August or September, 1991, Braithwaite showed the plaintiff a chair with a back massaging device in it, and suggested that she sit in it because she might get an orgasm therefrom. P.D., pp. 200-01.

In October, 1991, Harris resumed his harassment of the plaintiff. He pinched the plaintiff on the buttocks and touched her breasts one or two times, which made the plaintiff upset and angry. On one day, he repeatedly entreated the plaintiff to stay late at work with him to have sex. After the plaintiff refused and tried to leave, Harris pulled his truck behind her car in the parking lot to prevent her from leaving. After she threatened to honk her horn until a security officer responded, Harris permitted her to leave. P.D., pp. 221-230.

The next day, in the workplace, Harris telephoned the plaintiff, and using vulgar language, he again solicited sex. Specifically, he told the plaintiff she had "good pussy," and that she had never given him the oral sex that he wanted. The next day, Harris again telephoned the plaintiff, and the plaintiff began recording the conversation. Apparently early in that conversation, Harris suspected that the plaintiff was recording what he was saying. Hence, he hung up the phone, stormed into the plaintiff's office and began cursing, ranting and raving at the plaintiff so loudly that other employees came to see what was happening. P.D., pp. 230-235, 728-32.

Again, the plaintiff reported all of the above October, 1991 incidents with Harris to Dr. Jack, who merely told her to stay away from Harris because both the plaintiff and Harris were married. P.D., pp. 225, 227-28.

Braithwaite contends that at some point in November, 1991, after an announcement of the reorganization of the clerical pool and a change in plaintiff's supervisor to Alice Mitchell, the plaintiff indicated she could never accept Alice Mitchell as her supervisor and would rather resign. Accordingly,...

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