Smith v. Akstein

Decision Date30 December 2005
Docket NumberNo. 104CV1002WSDCCH.,104CV1002WSDCCH.
Citation408 F.Supp.2d 1309
PartiesBrandy Martinez SMITH, Plaintiff, v. Ricardo B. AKSTEIN, M.D., and Akstein Eye Center, P.C., Defendant.
CourtU.S. District Court — Northern District of Georgia

Bruce R. Millar, Millar Mixon and Hunt, Jonesboro, GA, William M. Ordway, Office of William M. Ordway, Atlanta, GA, for Plaintiff.

David W. Long-Daniels, Ernest L. Greer, Amanda S. Thompson, Greenberg Traurig, Atlanta, GA, for Defendant.

ORDER

DUFFEY, District Judge.

This matter is before the Court on the Report and Recommendation issued by Magistrate Judge Hagy [75]. Because no objections to the Report and Recommendation have been filed, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). After careful review, the Court finds no plain error in the Magistrate Judge's factual or legal conclusions.

Accordingly,

IT IS HEREBY ORDERED that the Court ADOPTS AS ITS ORDER the Magistrate Judge's Report and Recommendation. Defendants' Motion for Partial Summary Judgment [50] is GRANTED IN PART and DENIED IN PART. Defendants' motion is GRANTED as to (i) all Title VII claims against Dr. Akstein; (ii) Title VII claims for constructive discharge sexual harassment, constructive discharge gender discrimination and gender discrimination against Defendant Akstein Eye Center, P.C.; and (iii) state-law claims for intentional infliction of emotional distress and failure to maintain a safe working environment against both Defendants. Defendants' motion is DENIED with respect to Plaintiff's claim for hostile work environment against Defendant Akstein Eye Center, P.C. Accordingly, Counts I, II, IV, V and VI of Plaintiff's Complaint are DISMISSED as to both Defendants and Count III is DISMISSED as to Defendant Ricardo B. Akstein only.

SO ORDERED.

REPORT AND RECOMMENDATION IN AN EMPLOYMENT DISCRIMINATION ACTION

HAGY, United States Magistrate Judge.

Plaintiff filed the above-styled civil action on April 13, 2004. She claims that Defendant discriminated against her on the basis of her sex and subjected her to sexual harassment, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. She also asserts state law claims of: (a) intentional infliction of emotional distress; (b) failure to maintain a workplace free from unwanted misconduct, sexual harassment, and gender discrimination (hereinafter, "failure to maintain a safe working environment" or "unsafe workplace"), and (c) battery.1

The action is presently before the Court on Defendants' Motion for Partial Summary Judgment [50]2 ("Motion for Summary Judgment") and on Defendants' Motion to Strike Portions of Plaintiff's Initial Disclosures and to Exclude Witnesses [53] ("Motion to Strike"). In their Motion for Summary Judgment, Defendants seek summary judgment on Plaintiff's Title VII claims (Counts I-IV of her Complaint) and on Plaintiff's state law claims for intentional infliction of emotional distress and failure to maintain a safe working environment (Counts V and VI of her Complaint), as well as on Plaintiff's request for punitive damages under Title VII. For the reasons discussed below, the undersigned RECOMMENDS that Defendants' Motion for Summary Judgment [50] be GRANTED IN PART AND DENIED IN PART. The Court RECOMMENDS that Counts I, II, IV, V, and VI be DISMISSED as to both Defendants, and that Count III be DISMISSED as to Defendant Ricardo Akstein, M.D. but that it proceed as to Defendant Akstein Eye Center, P.C. In addition, it is ORDERED that Defendants' Motion to Strike [53] be DENIED WITHOUT PREJUDICE.

I. SUMMARY OF DECISION AND RECOMMENDATION

Defendants seek summary judgment on Plaintiff's Title VII claims (Counts I-IV), including her request for punitive damages under those claims, as well as on her state law claims for intentional infliction of emotional distress (Count V) and for a failure to maintain a safe working environment (Count VI). The Court finds that Defendant Ricardo Akstein, M.D. ("Dr. Akstein" or "Akstein"), as an individual, cannot be held liable under Title VII, and that Plaintiff's Title VII claims (Counts I-IV) can be stated against only her employer, Akstein Eye Center, P.C. (the "Eye Center"). Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment be GRANTED on that ground and that all Title VII claims against Dr. Akstein be DISMISSED.

As for the claims against the Eye Center, the Court finds that a fact question exists as to whether the alleged sexual harassment perpetrated by Dr. Akstein against Plaintiff was severe or pervasive enough to have altered the terms and conditions of her employment at the Eye Center. Furthermore, regardless of whether Plaintiff availed herself of the procedures in place to report sexual harassment, the Court finds that the Eye Center can be held vicariously liable for the actions of its principal and alter ego, Dr. Akstein. Accordingly, the Court finds that Plaintiff's sexually hostile claim (Count III) may stand, and RECOMMENDS that Defendants' Motion for Summary Judgment on this claim be DENIED and that this claim remain as to Defendant the Eye Center.

Notwithstanding this conclusion, the Court finds that Plaintiff has not presented a genuine issue of material fact in support of her claim that she was constructively discharged, and therefore, her constructive discharge ("tangible employment action") sexual harassment claim (Count I) fails. For this reason, and because she has failed to point to similarly situated male employees treated more favorably than she was, her constructive discharge gender discrimination claim (Count II) also fails. Finally, Plaintiff's remaining Title VII claim, which she alleges is based on "gender discrimination without tangible employment action" (Count IV), fails for these reasons as well as because it is not a recognized cause of action. Accordingly, the Court RECOMMENDS that Defendants' Motion for Summary Judgment on Counts I, II, and IV be GRANTED, and that these claims be DISMISSED against both Defendants.

As to that portion of Defendants' Motion for Summary Judgment seeking a ruling on Plaintiff's request for punitive damages under Title VII, the Court finds that, because her sexually hostile work environment claim stands, and because of fact issues as to intent, the Court should not determine whether punitive damages are warranted at this time.

Finally, Defendants have moved for summary judgment on Plaintiff's intentional infliction of emotional distress claim (Count V) and on her unsafe workplace claim (Count VI) under Georgia law. The Court finds that the actions as alleged against Defendants are not sufficiently outrageous to satisfy the standards of intentional infliction of emotional distress under Georgia law, and therefore, that this claim fails. In addition, the Court finds that Plaintiff cannot state a claim for an unsafe workplace for allegations amounting to emotional distress, and therefore, that this claim fails as well. Accordingly, the Court RECOMMENDS that Counts V and VI of Plaintiff's Complaint be DISMISSED against both Defendants.

II. STATEMENT OF THE FACTS
A. PRELIMINARY MATTERS

Plaintiff has filed a response to Defendants' "Statement of Material Undisputed Facts" ("SMF"), attached to her Response to Defendants' Motion for Summary Judgment [69], in which she denies SMF ¶¶ 8, 11-13, 15-16, 23, 25, 32, 35, 49-52. In that response, however, Plaintiff has not cited to any evidence in the record controverting Defendants' material facts. According to Local Rule 56.1.B.(2)(a)(2) "[t]his Court will deem each of the movant's facts as admitted unless the respondent: (i) directly refutes the movant's facts with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant's fact; or (iii) points out that the movant's fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1B.(1)." LR 56.1B.(2)(a)(2), ND Ga.

Because Plaintiff has failed to observe the Local Rules by failing properly controvert any of Defendants' facts in her Response to Defendants' SMF, the Court must deem the material facts submitted by Defendants to be admitted by Plaintiff. See Denney v. City of Albany, 247 F.3d 1172 (11th Cir.2001) (citing Jones v. Gerwens, 874 F.2d 1534, 1537, n. 3 (11th Cir. 1989)).

While Plaintiff has included a discussion of the facts in her Brief, which apparently is intended to dispute portions of Defendants' SMF (See Plaintiff's Memorandum in Support of her Response to Defendants' Motion for Summary Judgment ("Pl.'s Br.") at 3-9), that discussion is not adequate. Local Rule 56.1B.(2)(a)(1) states specifically that a "response [to a movant's SMF] shall contain individually numbered, concise, non-argumentative responses corresponding to each of the movant's numbered undisputed material facts." LR 56.1B.(2)(a)(1), ND Ga. Further, this response must be in a separate document filed "with the responsive brief." LR 56.1B.(2), ND Ga (emphasis added).

Plaintiff also has filed a "Statement of Material Facts as to Which There is a Genuine Issue to Be Tried" [69] ("PSMF"). And, although Defendants failed to respond to this statement as required under Local Rule 56.1B.(2)(c), many of these facts are not material,3 are not in actual dispute,4 or are based on hearsay or other inadmissible evidence.5 Others are simply legal conclusions, which are inappropriate under this Court's Local Rules.6 See LR 56.1B.(1) ("The court will not consider any fact ... (c) stated as an issue or legal conclusion."); LR 56.1B.(2) (stating that the statement of disputed material facts must meet the criteria set forth in LR 56.1B.(1)). Still others make no sense,7 or are not supported by the designated...

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