White v. Wells Fargo Guard Services

Decision Date29 September 1995
Docket NumberCiv. No. 94-D-875-E.
Citation908 F. Supp. 1570
PartiesRobyn L. WHITE, Plaintiff, v. WELLS FARGO GUARD SERVICES, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

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Joseph Brady Lewis, Montgomery, AL, for plaintiff.

W. Wheeler Smith, Birmingham, AL, for defendants.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is defendant Wells Fargo Guard Services' motion for summary judgment filed February 21, 1995. The plaintiff responded in opposition on March 13, 1995, to which the defendant replied on March 31, 1995. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the defendant's motion is due to be granted in part and denied in part.

JURISDICTION AND VENUE

Jurisdiction is proper pursuant to 28 U.S.C. § 1331 as the plaintiff alleges a violation of 42 U.S.C. § 2000e, Title VII.1 Personal jurisdiction and venue are not contested.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As the Supreme Court has explained the summary judgment standard:

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 as to any 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.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by his own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(e).

In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2510.

FINDINGS OF FACT

This action is composed of a disparate treatment claim based on gender discrimination and a sexual harassment claim. The issues are whether Robyn White (hereafter "Ms. White") was denied a promotion because she refused to "go out" with her supervisor and whether she was denied a promotion based on her sex.

Ms. White was employed by Wells Fargo Guard Services (hereafter "Wells Fargo") on June 1, 1993, as a security guard. On August 2, 1993, Ms. White was promoted from her security guard position to that of sergeant, a supervisory position. Thereafter, sometime in August 1993,2 a higher supervisory position, that of lieutenant site supervisor, became open, and it is this position which is the center of this controversy. On October 4, 1993, the position of lieutenant site supervisor was given to a male, Raymond Echols (hereafter "Mr. Echols"). Aff. of Robyn White. Ms. White alleges that she was denied this promotion to Lieutenant Site Supervisor, because (1) she was sexually harassed by her supervisor and (2) she is a female.

Specifically, she alleges that during the period of time between the first part of August, 1993, and the first part of October, 1993, she was sexually harassed by her then-supervisor, Captain Roy Patton (hereafter "Mr. Patton"). Mr. Patton allegedly suggested to her that she "could grow within the company" if she would "go out with him." Depo. of Robyn White at 30-31. Ms. White refused Mr. Patton's offers and thereafter, was turned down for the promotion.

Wells Fargo asserts that Ms. White is estopped from raising the issue of the sexual harassment, because she did not specifically bring forth this claim before the Equal Employment Opportunity Commission. Ms. White concedes this point; however, she asserts that sexual harassment by her supervisor should be considered as additional evidence of the intent and motive to discriminate.

Regarding her disparate treatment claim, Ms. White claims that she was more qualified than Mr. Echols. She also alleges that she had neither been approved nor hired by anyone else at the time the promotion was open, and thus, she was available for the promotion which was filled on October 4, 1993. She does admit that while she was employed by Wells Fargo, she had applied for a position at Tuskegee University. Her qualifications were initially approved by Tuskegee University on or about October 5, 1993, and she was accepted for employment at Tuskegee University on or about October 14, 1993, with her employment to begin on October 18, 1993. Aff. of Robyn White.

On the other hand, Wells Fargo not only asserts that Mr. Echols was more qualified than Ms. White, but also, they contend that because Ms. White had accepted employment with Tuskegee University, the position was given to Mr. Echols. In support, Wells Fargo states that Barry White (hereafter "Mr. White"), who is Ms. White's brother and at the time was employed by Wells Fargo, informed them that Ms. White had accepted a position with the Tuskegee University Campus Police. Aff. of Ulaunda Y. Poole. Thereafter, David Hicks (hereafter "Mr. Hicks"), branch manager for Wells Fargo, allegedly verified Mr. White's statement by calling Tuskegee University. However, Mr. White denies that he ever made the alleged statement that Ms. White had accepted employment elsewhere. Aff. of Barry White.

Ms. White seeks monetary relief and reinstatement of her former job. However, Wells Fargo asserts that she was not damaged, because she voluntarily left Wells Fargo and thereafter, took a job at slightly less pay than she was earning at Wells Fargo. Specifically, Wells Fargo contends, and Ms. White admits, that her pay at Wells Fargo as a sergeant was $6.00 per hour, whereas, her pay at Tuskegee University is $5.73 per hour. Depo. of Robyn White at 6, 16, 18. Further, Tuskegee University also provides her medical benefits through Blue Cross and Blue Shield and added compensation of time and a half for overtime. Id. However, Ms. White contends she has suffered embarrassment, humiliation, mental and emotional distress and anguish, because her employment opportunities at Wells Fargo were curtailed. In support, she alleges that she desired to remain employed at Wells Fargo, and she wished to be promoted to a position for which she was qualified.

DISCUSSION
A. MOTION TO STRIKE

Before proceeding to the issues presented in the summary judgment motion, the court will first address Ms. White's motion contained in her response to summary judgment to strike portions of Ulaunda Y. Poole's affidavit, found in paragraphs 5, 6 and 7, on the grounds that these matters in the affidavit are outside the personal knowledge of the affiant.3 Specifically, Ms. White asserts that the following should be stricken:

5. ... Ms. White's brother, Barry White, who is also an employee of Wells Fargo Services, informed Mr. Raymond Echols that Robyn White had accepted a position as an employee with Tuskegee University, and that he was interested in filling her then current position as a Sergeant after she left. (See Attachment I.) Upon being informed of this Mr. David Hicks, Branch Manager, called the client to verify Mr. White's statement. It was confirmed the Ms. White had been hired by the client and was scheduled to begin employment within the next couple of weeks. Due to the fact that Ms. White had accepted another job, the Site Supervisor's position was given to Mr. Echols. (See Attachment II.)
6. ... Mr. Echols had over five years prior experience in law enforcement, serving over three years as a police officer and over two years as a deputy sheriff. (See Attachment III.) Clai
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