Sowash v. Marshalls of Ma, Inc.
| Decision Date | 24 March 2021 |
| Docket Number | Case No: 7:19-cv-361 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | SUMMER SOWASH, Plaintiff v. MARSHALLS OF MA, INC., et al., Defendants. |
MEMORANDUM OPINION
This matter is before the court on defendants Marshalls of MA, Inc., and David Hughes's (collectively, "Marshalls") motion for summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure. ECF No. 48. For the reasons discussed below, the court will GRANT Marshalls's motion for summary judgment in its entirety.
Plaintiff Summer Sowash began working at Marshalls in Roanoke, Virginia, in September 2010. Summer Sowash Dep., ECF No. 50-3, at 26. Defendant Marshalls has anti-discrimination and anti-harassment policies. Id. at 181. Marshalls encourages employees to report any discrimination or harassment concerns they have. Marshalls has a Human Resources Business Partner who, among other things, handles employees' harassment concerns. Joseph S. Taylor Dep., ECF No. 50-13, at 30. Marshalls also provides training regarding its discrimination and harassment policies. James M. Singleton Dep., ECF No. 49-2, at 11-12.
Generally, Marshalls employs a store manager, three assistant store managers, key carriers, coordinators, and associates at each store. Id. at 12-14, 20-21. At the Roanoke location, Clayton Richmond was store manager. Id. at 30. David Hughes, Lynn Tyrrell, and Jasen Smith were assistant store managers. Erica Garrett Dep., ECF No. 50-11, at 28. Sowash was a key carrier and coordinator, and she reported to Tyrrell. Sowash Dep. at 27-29; David Hughes Dep., ECF No. 50-1, at 124-25.
David Hughes began working at the Roanoke Marshalls as an assistant manager in October 2017. Hughes Dep. at 8, 53. Hughes is a gay man in a long-term relationship with his husband. Id. at 6, 47; Kristy Thomason Dep., ECF No. 50-12, at 29-30.
On February 20, 2018, Sowash emailed Reggie Bennett, the region's Human Resources Business Partner, to discuss an "urgent matter" that occurred a few days prior. ECF No. 49-3 at 11. Sowash described her desire to become an assistant store manager in the Roanoke store,1 and she complained of Hughes's inability to lead employees in a "positive manner" and not "with fear." Id. In her email, Sowash mentioned a February 16, 2018 incident with Hughes where he "used a threatening tone to try to show control." Id. at 12. Sowash described the encounter as follows:
Last week, Friday the 16th around 9:45 am David called me into his office abruptly over [a phone call he received from Lynn Terrell regarding another employee's disclosure of Hughes's treatment toward her]. He demanded to tell him what I knew [about the employee reporting Hughes], but I had no clue what he was referencing. He said, "IF I FIND OUT THAT YOU ARE LYING TO ME YOU AND ME ARE ABOUT TO HAVE BIGGER PROBLEMS." Again, I've never felt scared to do my job or to work....but it was clear he was using a threatening tone to try to show control. It made me uncomfortable and I am now dread (sic) going to work.
ECF No. 49-3 at 12; Sowash Dep. at 104-07. While Sowash said she felt "uncomfortable" and "dread[ed] going to work," she did not state that she was fearful of any potential harm from Hughes. ECF No. 49-3 at 12. Hughes did not touch Sowash or make any sexual comments to her during this encounter. Sowash Dep. at 109.
In March 2018, about one month after the February 2018 office incident, Sowash said Hughes started "hovering over her" and began putting his arm around her and touching her arm. Id. at 103, 109-112. These touches were described as one-armed hugs where Hughes would run his finger up and down her arm. Id. at 111-13. This touching was unaccompanied by sexual comments. Id. at 113-15. Sowash stated that the touching lasted for months. Id. at 102, 110. Sowash never told Hughes that she did not want to be touched or hugged. Id. at 116, 119.
Concurrently, another employee, Kristy Thomason, went to Richmond with allegations that Hughes touched her arms and shoulders. Thomason Dep. at 25-26. Although she did not think the touching was sexual, she thought that Hughes touched her to be "friendly" and he wanted to "try[] to be your girlfriend." ECF No. 49-3 at 17. Thomason did not want to be touched because of her medical condition, which made the touching painful. Thomason Dep. at 25.
In April 2018, Sowash missed some work due to surgery. When she returned to work on April 24, 2018, Hughes "hugged me and kissed me on my cheek," and said he was glad to have me back. Sowash Dep. at 138-39. During this encounter, Hughes did not make any sexual comments or try to grope Sowash. Id. at 144. Moreover, Sowash did not tell Hughes to stop or that she did not want to be hugged. Id. at 138-39, 141-42. Sowash testified when Hugheshugged her, she did not move because she was "scared" and "uncomfortable." Sowash Dep. at 144, 147. Another employee, Vivian Mendez, saw this interaction and spoke to Sowash about what happened.
Around the same time in April 2018, Marshalls received a report alleging that Richmond was involved in a relationship with an associate. In response, Marshalls sent Erica Garrett, a corporate rapid-response team member, to the Roanoke store to perform a "culture pulse."2 Garrett Dep. at 47-48. Garrett's job was to "respond to early warning signs that could affect associate morale and an unhealthy work environment" in the Roanoke store. Sowash Dep. at 61; Garrett Dep. at 47. On May 1-2, 2018, Garrett met and interviewed various employees in the Roanoke store. Garrett Dep. at 17. On May 15, 2018, Garrett reported her notes and findings to Bennett. Id. at 19, 23. During the interview with Garrett, Sowash did not report any harassment from Hughes. Id. at 25, 29.
Based on the results of Garrett's Roanoke visit, several issues were brought to Joe Taylor, the Senior Associate Relations Specialist, for investigation. Taylor Dep. at 9-10. Taylor then went to the Roanoke store to conduct employee interviews. Id. at 11-13; Sowash Dep. at 76-77. The purpose of Taylor's interviews was to, among other things, investigate Richmond's alleged employee relationships and concerns over Hughes's inappropriate touching and comments. Taylor Dep. at 19-20.
During Taylor's interview, Sowash reported Hughes's hug and kiss on the cheek. Taylor Dep. at 31. Sowash provided a written statement about the incident. Sowash Dep. at 91-93.Taylor also received a written statement from Vivian Mendez, who witnessed the incident and stated that Hughes hugged Sowash, appeared to kiss her on the cheek, and said that he was glad she was back. Sowash Dep. at 98.
Following his investigation in June 2018, Taylor issued a summary report which said that the allegations against Richmond were inconclusive, but the allegations against Hughes were validated, including the touching, hugging, kissing Sowash's cheek, and inappropriate comments like referring to himself as a "Queen" or "fa**ot." Taylor Dep. at 22-26. Hughes stated he did not recall, nor would he, kiss an associate. Hughes Dep. at 155-56. He also testified that he did not recall touching anyone but may have placed his hand on employees' shoulders in a friendly, appropriate manner. Id. at 155-57.
Consequently, Marshalls issued a written warning to Hughes on July 3, 2018. Taylor Dep. at 26; Hughes Dep. at 28-31. Richmond met with Hughes to (1) discuss what corrective procedures would be enacted; (2) review Marshalls' anti-discrimination and anti-harassment policies in the company's Code of Conduct; and (3) set up weekly meetings to continuously monitor Hughes's behavior. Hughes Dep. at 40-41, 44-46. Sowash testified that Hughes did not touch her again after Taylor's interviews concluded on June 15, 2018. Sowash Dep. at 154-57.
On July 9, 2018, Hughes told Sowash that she "looked pretty in her yellow" shirt and said not to take offense at the comment. Sowash Dep. at 172. She then reported this to Richmond and Taylor. ECF No. 49-3 at 14. Hughes said he did not remember making that exact statement, but he often gave compliments, and it would not be unusual if he commented on Sowash's outfit. Hughes Dep. at 134-35. Additionally, Sowash reported that Hughesinappropriately winked at two male employees. ECF No. 49-3 at 20. In September 2019, Hughes transferred to another Marshalls location.
On May 10, 2019, Sowash brought a two-count claim against Marshalls, alleging Title VII sex discrimination (Count I) and tortious assault and battery (Count II). Marshalls filed for summary judgment, asserting that Sowash lacks evidence to show that Hughes's conduct was severe or pervasive because it was infrequent and contained no sexual overtures. ECF Nos. 48, 49. Sowash opposes. ECF No. 50. The court heard argument on April 22, 2021, and the matters are ripe for resolution.
Under Rule 56(a), the court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If that burden has been...
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