Michael Stancombe v. New Process Steel LP, et al

Filing

Opinion issued by court as to Appellant Michael Stancombe. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-11791

Date Filed: 06/02/2016

Page: 1 of 26

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11791
Non-Argument Calendar
________________________
D.C. Docket No. 2:13-cv-01134-AKK

MICHAEL STANCOMBE,
Plaintiff-Appellant,
versus
NEW PROCESS STEEL LP,
NEW PROCESS STEEL LP LLC,
NEW PROCESS STEEL CORPORATION OF ILLINOIS,
RODERICK WOODFIN,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(June 2, 2016)
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:

Case: 15-11791

Date Filed: 06/02/2016

Page: 2 of 26

Plaintiff-Appellant Michael Stancombe appeals the district court’s grant of
summary judgment in favor of Defendants-Appellees New Process Steel, L.P.,
New Process Steel LP LLC, and New Process Steel Corporation of Illinois
(collectively “NPS”), and Roderick Woodfin (“Woodfin”), in a lawsuit asserting
federal employment-discrimination claims of hostile work environment and
constructive discharge, pursuant to Title VII, 42 U.S.C. § 2000e-2, and state-law
claims of invasion of privacy, outrage, assault and battery, and negligent and
wanton supervision. After careful review, we affirm.
I. Factual Background
NPS is a steel-processing company with a facility in Fairfield, Alabama. 1 In
or around January 2012, Stancombe got a temporary position at NPS through a
staffing agency. He worked on the “banding line,” where he banded steel coil
products together so that they would not unravel. Stancombe had been working at
NPS for roughly one month when he resigned following two incidents of alleged
on-the-job sexual harassment by a male coworker, Woodfin.
The first incident occurred on Thursday, February 9, 2012. Woodfin hugged
Stancombe and touched his buttocks three times in a row while stating, “Good job,
good job.” Stancombe reported the incident to his supervisor, Joe Young, who, in
turn, informed the manager of the production department, Doug Logan.
1

We state the facts in the light most favorable to Stancombe, the non-moving party.
Bradley v. Franklin Collection Serv., Inc., 739 F.3d 606, 608 (11th Cir. 2014).
2

Case: 15-11791

Date Filed: 06/02/2016

Page: 3 of 26

Stancombe met with Logan, who reassured Stancombe that NPS took sexual
harassment seriously and that NPS would investigate the complaint. Logan took
written statements from Stancombe and Woodfin, moved Stancombe to a different
department, and instructed Woodfin not to have any contact with Stancombe.
Logan also told Stancombe that he would be assigned to a different shift than
Woodfin starting the following Monday, February 13, 2012.
In the meantime, Stancombe volunteered to work overtime on Saturday,
February 11, two days after the first incident. When he appeared for work, he saw
that Woodfin also was working that day. Stancombe told his supervisor, Joel
Bowman, that he was not comfortable around Woodfin, and Bowman arranged for
Stancombe to work with Bowman for the day. At some point, Stancombe was
alone and kneeling down when Woodfin came over to Stancombe’s area, grabbed
his head, and made three pelvic thrusts in his face. The incident lasted for three to
four seconds. Disgusted and in shock, Stancombe angrily picked up his tools,
clocked out, and left. That was his last day of work at NPS. Stancombe did not
inform NPS of the incident or his resignation directly, but rather told the staffing
agency, which contacted NPS on February 13.
Both of Stancombe’s allegations were investigated by NPS. After the first
complaint, Logan conducted a preliminary investigation and interviewed
Stancombe, Woodfin, and five other employees who had been working in the
3

Case: 15-11791

Date Filed: 06/02/2016

Page: 4 of 26

general area of the incident. Logan did not find any validation of Stancombe’s
complaint that Woodfin touched his buttocks.

When the human-resources

administrator, Renee Richardson, returned from vacation on February 13, she
interviewed Woodfin and eight other employees about both of Stancombe’s
complaints. Richardson agreed with Logan’s determination regarding the first
complaint and found no validation for Stancombe’s second complaint. Woodfin
denied the second incident, no employee witnessed it, and Bowman stated that he
was near Stancombe the entire day but did not see the alleged incident.
Following the investigations, Woodfin was suspended for three days for the
first incident because he had admitted to putting his arm around Stancombe. While
NPS found that the physical contact was instigated by Stancombe and did not
qualify as “harassment,” NPS nonetheless suspended Woodfin as a “reminder . . .
that physical contact of this nature is inappropriate for the workplace.”
Apparently, what Woodfin was being reminded of was a prior disciplinary incident
from June 2007, when NPS disciplined him for hitting another employee on the
buttocks as the employee was bent over to look into a refrigerator. The conduct
report for that incident states, “[A]ny further instance of confirmed inappropriate
behavior will bring immediate termination.”
NPS has a sexual discrimination and harassment policy in place. The policy
explains the types of conduct that qualify as sexual harassment, and it directs
4

Case: 15-11791

Date Filed: 06/02/2016

Page: 5 of 26

employees to report instances of sexual harassment to management immediately.
The policy also states that all reports of possible sexual harassment will be
investigated and that a determination will be made on a case-by-case basis after
taking into account all of the circumstances.
II. Procedural History
Stancombe filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”).

Based on Stancombe’s allegations, the

EEOC issued a determination finding cause to believe that Stancombe and other
male employees at NPS had been subjected to sexual harassment in violation of
Title VII.

The EEOC also concluded that Stancombe was “constructively

discharged.”
After receiving his right-to-sue letter from the EEOC, Stancombe filed suit
against NPS and Woodfin in the United States District Court for the Northern
District of Alabama, alleging various claims under Title VII and Alabama state
law. The district court granted summary judgment to the defendants on all claims
except for a state-law assault-and-battery claim against Woodfin, which it declined
to exercise supplemental jurisdiction over and dismissed without prejudice.
Stancombe timely appealed.
III. Standard of Review

5

Case: 15-11791

Date Filed: 06/02/2016

Page: 6 of 26

We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the non-moving party. Weeks v. Harden
Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).

Summary judgment is

appropriate 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). A genuine factual dispute exists if a jury could return a verdict for the nonmoving party. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.
2004).
IV. Title VII Claims 2
A.

Hostile Work Environment
Stancombe argues that NPS was not entitled to summary judgment on his

hostile-work-environment claim because the incidents were sufficiently continuous
and concerted to have altered the conditions of his employment. He further argues
that NPS failed to take action to stop the sexually inappropriate behavior.

2

For both Title VII claims, Stancombe relies on the EEOC determination finding cause
to believe that Title VII had been violated as he alleged. Although an EEOC determination may
be admissible at trial, it is not an adjudication of rights and liabilities, Goldsmith v. Bagby
Elevator Co., Inc., 513 F.3d 1261, 1289 (11th Cir. 2008), and such determinations may “vary
greatly in quality and factual detail,” Barfield v. Orange Cnty., 911 F.2d 644, 650 (11th Cir.
1990). Moreover, both this Court and the district court have a duty to review de novo whether a
genuine issue of material fact exists for trial. Moore v. Devine, 767 F.2d 1541, 1550-51 (11th
Cir. 1985) modified on reh’g, 780 F.2d 1559, 1560 (11th Cir. 1986) (clarifying that EEOC
determinations for federal employees are different and may be binding on the courts). With
these principles in mind, we find that the EEOC determination in this case, consisting largely of
legal conclusions without supporting analysis, is of little probative value and does not affect our
analysis.
6

Case: 15-11791

Date Filed: 06/02/2016

Page: 7 of 26

Title VII is violated when an employee’s “workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct.
367, 370 (1993) (citations and internal quotation marks omitted). “As opposed to
discrete acts such as termination, failure to promote, denial of transfer, or refusal to
hire, a hostile work environment claim addresses acts different in kind whose very
nature involves repeated conduct, such as discriminatory intimidation, ridicule, and
insult.” McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008)) (internal
quotation marks omitted; alteration adopted).
To prove a hostile-work-environment claim, a plaintiff must establish the
following elements: (1) he belongs to a protected group; (2) he has been subjected
to unwelcome sexual harassment, such as sexual advances, requests for sexual
favors, and other conduct of a sexual nature; (3) the harassment was based on the
protected characteristic; (4) the harassment was sufficiently severe or pervasive to
alter the terms and conditions of employment and create a discriminatorily abusive
working environment; and (5) a basis exists for holding the employer liable.
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en
banc). The first two elements are not in dispute. We therefore focus on the
remaining three.
7

Case: 15-11791

1.

Date Filed: 06/02/2016

Page: 8 of 26

Based on Sex

Same-sex harassment is actionable provided that the harassment was based
on the sex of the employee. Oncale v. Sundowner Offshore Servs., 523 U.S. 75,
79, 118 S. Ct. 998, 1001-02 (1998) (“[N]othing in Title VII necessarily bars a
claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the
defendant . . . are of the same sex.”). “The critical issue . . . is whether members of
one sex are exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed.” Reeves, 594 F.3d at 813
(quotation marks omitted).

To make that showing, the plaintiff may present

evidence that (1) the harasser was homosexual; (2) that the harasser has a genderhostility towards that particular sex in the workplace; or (3) the harasser treated
one sex in a mixed-sex workplace differently than the other sex. See Oncale, 523
U.S. at 80-81, 118 S. Ct. at 1002.
Here, Stancombe did not produce evidence that any harassment that
occurred was based on his sex.3

The record lacks comparative evidence or

evidence that Woodfin had a general hostility toward men in the workplace. See
id. We also cannot conclude that Stancombe produced “credible evidence that the
harasser was homosexual.” Id. Stancombe’s apparent belief that Woodfin was gay

3

The district court did not address this element, but it was raised in NPS’s motion for
summary judgment, and we may affirm on any adequate ground supported by the record.
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1251-52 (11th Cir. 2013).
8

Case: 15-11791

Date Filed: 06/02/2016

Page: 9 of 26

and workplace rumors to that effect do not qualify as “credible evidence.”
Woodfin testified that he had been married twice and was not gay, Stancombe
admitted that he did not know the motivation for Woodfin’s conduct, and no
“explicit or implicit proposals of sexual activity” occurred from which we or a jury
could draw the inference that Woodfin’s conduct was motivated by sexual desire.
See id. The fact that the conduct was sexual in nature is not sufficient on its own to
show that it was motivated by sexual desire, because “general vulgarity or
references to sex that are indiscriminate in nature will not, standing alone,
generally be actionable.” Reeves, 594 F.3d at 809.
Although Woodfin’s alleged conduct was inappropriate and vulgar, there is
insufficient evidence to show that it amounted to discrimination because of sex.
See Oncale, 523 U.S. at 81, 118 S. Ct. at 1002.
2.

Sufficiently Hostile or Abusive

Not all workplace harassment, even if it based on sex, violates Title VII.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc).
Harassment is actionable only if “the conduct is sufficiently severe or pervasive to
alter the conditions of [the victim’s] employment and create an abusive working
environment.” Id. at 1245-46 (internal quotation marks omitted); Oncale, 523 U.S.
at 81, 118 S. Ct. at 1003 (Title VII “forbids only behavior so objectively offensive
as to alter the ‘conditions’ of the victim’s employment.”). Therefore, “simple
9

Case: 15-11791

Date Filed: 06/02/2016

Page: 10 of 26

teasing, offhand comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions of employment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283-84
(1998).
The “severe or pervasive” requirement contains both an objective and a
subjective component. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276
(11th Cir. 2002). The offensive behavior “must result in both an environment that
a reasonable person would find hostile or abusive and an environment that the
victim subjectively perceive[s] . . . to be abusive.” Id. (internal quotation marks
omitted).
The objective component is “judged from the perspective of a reasonable
person in the plaintiff’s position, considering all the circumstances.” Oncale, 523
U.S. at 81, 118 S. Ct. at 1003. Factors we consider in this analysis include (1) the
frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct
is physically threatening or humiliating, or a mere offensive utterance, and
(4) whether the conduct unreasonably interferes with the employee’s job
performance. Reeves, 594 F.3d at 808-09. No single factor is required. Harris,
510 U.S. at 23, 114 S. Ct. at 371. The evidence of harassment is considered
cumulatively and in the totality of the circumstances. Reeves, 594 F.3d at 808.

10

Case: 15-11791

Date Filed: 06/02/2016

Page: 11 of 26

The Supreme Court has directed courts to carefully consider “the social
context in which particular behavior occurs and is experienced by its target,” which
includes the “surrounding circumstances, expectations, and relationships,” and not
to simply focus on “the words used or the physical acts performed.” Oncale, 523
U.S. at 81-82, 118 S. Ct. at 1003. “Common sense, and an appropriate sensitivity
to social context, will enable courts and juries to distinguish between simple
teasing or roughhousing among members of the same sex, and conduct which a
reasonable person in the plaintiff's position would find severely hostile or abusive.”
Id. at 82, 118 S. Ct. at 1003.
Here, Stancombe’s hostile-work-environment claim was based on two
incidents of inappropriate physical contact by a coworker over roughly a onemonth period: (1) Woodfin hugged Stancombe and touched his buttocks three
times in succession; and (2) two days later, Woodfin approached Stancombe, who
was alone and kneeling, grabbed his head, and made three pelvic thrusts in his
face. The district court concluded that Stancombe was unable to show that the
conduct was severe or pervasive enough to create a hostile environment. We
agree, although for reasons slightly different than those articulated by the district
court.
With regard to the severity of the conduct and whether it was physically
threatening or humiliating, Woodfin’s alleged conduct is similar to conduct found
11

Case: 15-11791

Date Filed: 06/02/2016

Page: 12 of 26

to be severe and physically threatening and humiliating in Johnson v. Booker T.
Washington Broadcasting Service, Inc., in which the harasser’s conduct included
“standing so close to [the plaintiff] that his body parts touched her from behind,
and pulling his pants tight to reveal the imprint of his private parts.” 234 F.3d 501,
509 (11th Cir. 2000). But we cannot look solely to the “physical acts performed,”
Oncale, 523 U.S. at 82, 118 S. Ct. at 1003, and the similarity to Johnson ends once
we broaden our focus to view the totality of the circumstances.4
Significantly, in contrast to the facts of Johnson, the facts of this case do not
show a “continuous barrage of sexual harassment,” or, indeed, any harassing
conduct other than the two incidents. Id. (quoting Dees v. Johnson Controls World
Servs., Inc., 168 F.3d 417, 418 (11th Cir. 1999)). The conduct in Johnson included
roughly fifteen separate instances of harassment over the course of four months,
including verbal harassment, which is not present in this case. Id. Likewise, in
other cases where we have found evidence of a hostile working environment in
relatively short-time periods, the challenged conduct has been far more frequent
than in this case, which involved two incidents over a one-month period. See
Hulsey, 367 F.3d at 1248 (harassment occurred eighteen times over two-and-a-half
weeks); Miller, 277 F.3d at 1276 (plaintiff was called racially offensive names

4

Stancombe has not identified any similar or dissimilar case from this Circuit, or any
other circuit for that matter, that would shed light on whether the facts of this case are
sufficiently severe or pervasive to alter the conditions of his employment.
12

Case: 15-11791

Date Filed: 06/02/2016

Page: 13 of 26

three to four times per day over a one-month period). Here, the conduct was
infrequent and isolated. 5
Scant evidence also supports the conclusion that Woodfin’s conduct
interfered with Stancombe’s job performance, despite the fact that Stancombe quit
immediately after the second incident. In general, infrequent incidents are less
likely to alter the conditions of employment. See Mendoza, 195 F.3d at 1249.
While the second incident prompted Stancombe to leave work, and therefore
arguably interfered with his job performance, the evidence reflects that, had
Stancombe returned to work the following Monday, he would have been working a
different shift than Woodfin. In other words, had Stancombe continued to work at
NPS, Woodfin would no longer have been part of his immediate work
“environment.” The evidence also reflects that Woodfin was not a supervisor and
that his conduct was anomalous and unwelcome in the workplace.
Under the totality of the circumstances, we are unable to conclude that
Woodfin’s conduct was “so objectively offensive as to alter the ‘conditions’ of the
victim’s employment.” Oncale, 523 U.S. at 81, 118 S. Ct. at 1003. While the
second incident arguably was severe and clearly was vulgar and wholly
5

Stancombe cites previous incidents of alleged harassment during Woodfin’s history of
employment at NPS, but it does not appear that Stancombe had any specific knowledge of these
incidents at the time of the alleged harassment. See Adams v. Austral, U.S.A., L.L.C., 754 F.3d
1240, 1250 (11th Cir. 2014) (“Courts conduct the objective assessment from the perspective of a
reasonable person in the plaintiff’s position, knowing what the plaintiff knew.”). Stancombe
may have received some vague information from coworkers after the first incident, but it is not
sufficient to create a genuine issue of material fact.
13

Case: 15-11791

Date Filed: 06/02/2016

Page: 14 of 26

inappropriate, Stancombe demonstrated no pattern of harassment and presented no
other supporting evidence of an abusive working environment, and the two isolated
incidents were not so severe as to amount to a discriminatory change in terms and
conditions of employment. See Faragher, 524 U.S. at 788, 118 S. Ct. at 2283.
3.

Employer Liability

But even had Woodfin’s conduct been sufficiently severe or pervasive to
alter the terms and conditions of Stancombe’s employment, we agree with the
district court’s alternative finding that no basis exists to hold NPS liable for
Woodfin’s conduct.
“Where the perpetrator of the harassment is merely a co-employee of the
victim, the employer will be held directly liable if it knew or should have known of
the harassing conduct but failed to take prompt remedial action.” Miller, 277 F.3d
at 1278. Thus, an employer will not be liable if it took “immediate and appropriate
corrective action.” Watson v. Blue Circle, Inc., 324 F.3d 1252, 1261 (11th Cir.
2003). “The remedial action must be reasonably likely to prevent the misconduct
from recurring.” Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754
(11th Cir. 1996) (internal quotation marks omitted).
Here, NPS knew of the allegedly harassing conduct and took immediate and
appropriate correction action. After speaking with Stancombe regarding the first
incident, Logan and NPS immediately launched an investigation. See Baldwin v.
14

Case: 15-11791

Date Filed: 06/02/2016

Page: 15 of 26

Blue Cross/Blue Shield, 480 F.3d 1287, 1305 (11th Cir. 2007) (“A threshold step in
correcting harassment is to determine if any occurred, and that requires an
investigation that is reasonable given the circumstances.”).

NPS interviewed

Woodfin, Stancombe, and several other employees regarding the first incident.
Woodfin denied the incident, and no other employee corroborated Stancombe’s
allegations. The fact that NPS did not find validation for Stancombe’s allegations
does not mean that its response was not “appropriate.” See Kilgore, 93 F.3d at 754
(finding that the defendants’ actions were sufficient to show “prompt remedial
action” when they conducted investigatory interviews but found no support for the
harassment allegations). NPS also asked Stancombe to speak with a humanresources representative and an attorney the Monday after the incident.

And

despite finding no validation, NPS still suspended Woodfin for inappropriate
physical contact.
NPS also took immediate corrective action to separate Woodfin and
Stancombe while the investigation proceeded.

Logan interviewed Woodfin,

warned Woodfin not to have any further contact with Stancombe, and moved
Stancombe to a different shift so he would not be working around Woodfin. See
Fleming v. Boeing Co., 120 F.3d 242, 246-47 (11th Cir. 1997) (stating that the
employer was not liable because it took immediate and appropriate corrective
action by immediately investigating the complaint, giving a verbal warning, and
15

Case: 15-11791

Date Filed: 06/02/2016

Page: 16 of 26

transferring the complaining employee to a different group); see also Baldwin, 480
F.3d at 1305 (“[W]arnings and counseling of the harasser are enough where the
allegations are substantiated.”).

Ultimately, these actions did not prevent the

second incident from occurring, but we cannot say that NPS’s actions were
unreasonable or inappropriate under the circumstances.
To the extent that Stancombe argues that NPS failed to take appropriate
action to prevent harassment from occurring, we disagree. As a general matter,
NPS took reasonable care to prevent harassment by promulgating an antiharassment policy. See Madray v. Publix Supermarkets, Inc., 208 F.3d 1290,
1297-98 (11th Cir. 2000) (discussing the Faragher affirmative defense regarding
an employer’s liability for a supervisor’s conduct). Stancombe does not identify
any defect with the policy itself.
Nor has Stancombe shown that NPS failed to respond appropriately to prior
complaints against Woodfin. Stancombe relies heavily on an incident from 2004,
but all three employees involved, including Woodfin, were disciplined, and they all
affirmed that they did not feel that they had been harassed. With regard to the
report from 2007, Woodfin was disciplined for touching another employee’s
buttocks.

He was suspended and warned that another instance of confirmed

inappropriate behavior would result in immediate termination. The only other
incident known to NPS was from 2011, involving another employee who had
16

Case: 15-11791

Date Filed: 06/02/2016

Page: 17 of 26

complained to Logan that Woodfin made unwanted physical contact with his back
and arm. Logan stated that he would handle it, and the employee stated that the
incident never happened again. Stancombe cites one other incident from 2010 but
provides no evidence that NPS knew about this event until the employee was
interviewed following Stancombe’s complaints. On the whole, Stancombe has not
shown that NPS failed to respond appropriately in the past to the sporadic and
relatively minor complaints against Woodfin.
In sum, the district court properly found that NPS was entitled to summary
judgment because Stancombe failed to show that NPS was liable for Woodfin’s
conduct.
B.

Constructive Discharge
A plaintiff may bring a claim for “constructive discharge” in violation of

Title VII when the employee’s working conditions were “so intolerable that a
reasonable person in [the employee’s position] would have been compelled to
resign.” Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir.
2003). “Establishing a constructive discharge claim is a more onerous task than
establishing a hostile work environment claim.” Bryant v. Jones, 575 F.3d 1281,
1298 (11th Cir. 2009).
An employer may defend against a claim of constructive discharge by
showing both (1) that it had an accessible and effective policy for reporting and
17

Case: 15-11791

Date Filed: 06/02/2016

Page: 18 of 26

resolving complaints of discrimination; and (2) that the plaintiff unreasonably
failed to avail himself of that remedial apparatus. Id. at 1299. “A constructive
discharge will generally not be found if the employer is not given sufficient time to
remedy the situation.” Kilgore, 93 F.3d at 754.
The district court in this case did not err in granting summary judgment on
the constructive-discharge claim.

Because Stancombe did not show a hostile

working environment, he likewise cannot meet the higher standard required to
establish a constructive-discharge claim.

See Bryant, 575 F.3d at 1298.

In

addition, NPS had a harassment policy in place that required conducting
investigations of complaints filed by employees, and Stancombe failed to avail
himself of that remedial apparatus when he resigned after the second incident
without reporting it to management. Id. at 1299; cf. Kilgore, 93 F.3d at 754
(affirming summary judgment where the employer began an investigation of the
plaintiffs’ complaint but the plaintiffs did not return to work after advising the
employer of their complaints). While Stancombe did report the first incident to
management, two days was not sufficient time to investigate and remedy the
situation. See Kilgore, 93 F.3d 754.
We are not persuaded by Stancombe’s claim that he was excused from using
NPS’s remedial apparatus after the second incident because NPS would have found
no validation to his accusations, anyway. “Part of an employee’s obligation to be
18

Case: 15-11791

Date Filed: 06/02/2016

Page: 19 of 26

reasonable is an obligation not to assume the worst, and not to jump to conclusions
too fast.” Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987)
(emphasis in original). Plus, when Stancombe resigned, NPS had already taken
remedial action by changing Stancombe’s shift to remove the allegedly intolerable
working conditions.
In sum, the district court properly granted summary judgment on
Stancombe’s constructive-discharge claim.
V. Alabama State Law Claims
A.

Claims against Woodfin
1.

Invasion of Privacy

Under Alabama law, the tort of “invasion of privacy” can be established by
showing “the wrongful intrusion into one’s private activities in such a manner as to
outrage or cause mental suffering, shame, or humiliation to a person of ordinary
sensibilities.” McIsaac v. WZEW–FM Corp., 495 So. 2d 649, 651 (Ala. 1986); see
Machen v. Childersburg Bancorporation, Inc., 761 So. 2d 981, 983 n.1 (Ala. 1999)
(noting that Alabama does not recognize an independent cause of action for
“sexual harassment”). In other words, the plaintiff must show “an offensive or
objectionable prying or intrusion into the plaintiffs’ private affairs or concerns.”
Busby v. Truswal Sys. Corp., 551 So. 2d 322, 323-24 (Ala. 1989) (emphasis
added). “While asking a co-employee for a date and making sexual propositions
19

Case: 15-11791

Date Filed: 06/02/2016

Page: 20 of 26

usually do not constitute an invasion of privacy, extensive inquiries into one’s sex
life or looking up one’s skirt may constitute an invasion of privacy.” Ex parte
Atmore Cmty. Hosp., 719 So. 2d 1190, 1194 (Ala. 1998).
Here, Stancombe has not shown that the harassing conduct constituted an
intrusion into his private affairs or concerns. Stancombe does not contend that
Woodfin ever asked him about his sex life or private affairs, that Woodfin made
any sexually related comments to him, or that Woodfin invaded his privacy in any
way other than unwanted physical contact on two occasions. Cf. Busby, 551 So. 2d
at 324 (upholding liability for invasion of privacy where, over a three-month
period, the defendant repeatedly questioned the plaintiff about her sex life, insisted
that she engage in oral sex to avoid losing her job, and struck the plaintiff on the
bottom after she refused to have oral sex with him); Ex parte Atmore Cmty. Hosp.,
719 So. 2d 1190, 1194 (Ala. 1998) (upholding an invasion-of-privacy claim when
the defendant repeatedly touched the plaintiff’s arm in a manner that was
unwelcome and with sexual overtones, “made several lewd comments[,] asked [the
plaintiff] to meet him outside of work hours for other than business purposes[,] . . .
[and] looked up her skirt on more than one occasion”). Thus, there were no
“improper inquiries into [his] personal sexual proclivities and personality” or any
other examination or invasion of Stancombe’s private concerns.

20

Phillips v.

Case: 15-11791

Date Filed: 06/02/2016

Page: 21 of 26

Smalley Maint. Servs., 435 So. 2d 705, 707, 711 (Ala. 1983); see also Stevenson v.
Precision Standard, Inc., 762 So. 2d 820, 826 (Ala. 1999).
We do not mean to suggest that unwanted physical contact alone could never
constitute an invasion of privacy under Alabama law; we express no opinion on the
matter. But the evidence of Woodfin’s conduct in this case does not show an
intrusion into Stancombe’s private activities sufficient to support an invasion-ofprivacy claim.
2.

Outrage

Under Alabama law, the tort of outrage is an “extremely limited cause of
action” that applies to only three kinds of conduct: (1) wrongful conduct regarding
burial matters; (2) barbaric methods used to coerce an insurance settlement; and (3)
egregious sexual harassment. O’Rear v. B.H., 69 So. 3d 106, 118 (Ala. 2011).
The plaintiff must show that “(1) the actor intended to inflict emotional distress, or
knew or should have known that emotional distress was likely to result from his
conduct; (2) the conduct was extreme and outrageous; (3) the defendant’s actions
caused the plaintiff distress; and (4) that the distress was severe.” Hill v. Cundiff,
797 F.3d 948, 983 (11th Cir. 2015) (quotation and citation omitted).

The

plaintiff’s burden is a “heavy” one. Surrency v. Harbison, 489 So. 2d 1097, 1105
(Ala. 1986). To be sufficiently extreme, the conduct must be “so outrageous as to

21

Case: 15-11791

Date Filed: 06/02/2016

Page: 22 of 26

be regarded as atrocious and utterly intolerable in a civilized society.” Kilgore, 93
F.3d at 755 (quoting Am. Rd. Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980)).
Here, Woodfin’s alleged conduct was not sufficiently egregious for the tort
of outrage. Id. (noting that the tort of outrage only applies “in the most egregious
circumstances”). No doubt the act of grabbing another’s head and, while fully
clothed, making pelvic thrusts in his face is boorish, vulgar, and completely
unacceptable, but we cannot say that this one-time incident was so outrageous as to
satisfy the requisite element of the tort of outrage. See id.; cf. McIsaac, 495 So. 2d
at 651-52 (holding that no extreme or outrageous conduct occurred where the
defendant-supervisor stated that he wanted to have an affair with the plaintiff,
attempted to kiss her, made suggestive remarks, touched her and put his arm
around her, and then terminated her employment because she had refused his
advances).

Accordingly, the district court did not err in granting summary

judgment on Stancombe’s outrage claim.
B.

Claims Against NPS
1.

Negligent and Wanton Supervision

Stancombe argues that the district court erred in granting summary judgment
to NPS on his negligent and wanton supervision claims, because Woodfin had a
history of sexually harassing male co-workers and NPS failed to take appropriate
remedial action.
22

Case: 15-11791

Date Filed: 06/02/2016

Page: 23 of 26

In general, claims for wanton or negligent supervision under Alabama law
both require a plaintiff to establish by affirmative proof that the employer knew or
should have shown of the alleged incompetency.

Southland Bank v. A & A

Drywall Supply Co., Inc., 21 So. 3d 1196, 1216 (Ala. 2008) (negligent
supervision); Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665, 683
(Ala. 2001) (wanton supervision).

The employee’s incompetency “must be

habitual, rather than occasional, or of such a character as to render it imprudent to
retain him in service.” First Nat’l Bank of Montgomery v. Chandler, 39 So. 822,
828 (Ala. 1905).

A wanton-supervision claim requires a showing that the

employer wantonly or reckless disregarded its agent’s incompetence, whereas a
negligent-supervision claim requires a showing that the employer failed to exercise
“due care in the way that they handled the matter.” See Big B, Inc. v. Cottingham,
634 So. 2d 999, 1004 (Ala. 1999).
The Alabama Supreme Court has recognized that the manner in which
sexual-harassment complaints are handled can form the basis for a claim of
negligent or wanton supervision. Stevenson, 762 So. 2d at 825. However, no
cause of action arises “based on employer’s negligence or wantonness in
investigating a claim, independent of proof of wrongful conduct of an employee.”
Id. An employer may defend a suit by showing that it handled the complaint in an
appropriate manner. Id.
23

Case: 15-11791

Date Filed: 06/02/2016

Page: 24 of 26

Here, the district court did not err in granting summary judgment on the
negligent and wanton supervision claims, even assuming that underlying wrongful
conduct happened.

NPS took appropriate remedial action when informed of

Stancombe’s allegations against Woodfin regarding the first incident.

Logan

started an investigation; moved Stancombe to a different department; instructed
Woodfin, who denied the incident, to stay away from Stancombe; arranged for
Stancombe to change shifts the following week; and produced a report
documenting the results of the investigation. NPS’s actions were reasonable under
the circumstances.
Indeed, Stancombe does not really challenge the adequacy of NPS’s
investigation into his own complaints but instead points to Woodfin’s “history of
inappropriate sexual behavior” and NPS’s failure to take sufficient actions to stop
the harassment. However, as we have previously explained, we are not persuaded
that NPS failed to take appropriate remedial action in response to prior employee
complaints of harassment, let alone that it wantonly disregarded such complaints.
Woodfin’s prior conduct was not so habitual or severe that it was imprudent for
NPS to retain him and to take corrective action in the form of discipline and
counseling. Accordingly, we affirm the district court’s grant of summary judgment
on these claims.
2.

Vicarious Liability
24

Case: 15-11791

Date Filed: 06/02/2016

Page: 25 of 26

Finally, Stancombe argues that NPS was vicariously liable for Woodfin’s
intentional torts because it knew or should have known of the improper conduct
and failed to take adequate steps to stop it.
Under Alabama law, an employer is liable for the intentional torts of its
agent (1) if the wrongful acts were committed in the scope of his employment;
(2) the acts were in furtherance of the employer’s interests; and (3) the employer
participated in, authorized, or ratified the wrongful acts. Potts v. BE & K Const.
Co., 604 So. 2d 398, 400 (Ala. 1992). Here, Stancombe contends that NPS ratified
Woodfin’s actions.
To establish that the employer “ratified” the tortious conduct of one
employee against another employee, the complaining employee must show four
things: (1) the underlying tortious conduct of the offending employee; (2) the
employer’s knowledge of the offending employee’s tortious conduct against the
complaining employee; (3) the employer’s knowledge that the conduct constituted
sexual harassment or a continuing tort, or both; and (4) the employer’s failure to
“take ‘adequate’ steps to remedy the situation.” Id. If the steps taken by the
employer are not “reasonably calculated to halt the harassment, the steps taken by
the employer are not ‘adequate.’” Id. at 401.
Here, NPS cannot be held liable for the underlying torts of outrage and
invasion of privacy because, as discussed above, Stancombe failed to create a
25

Case: 15-11791

Date Filed: 06/02/2016

Page: 26 of 26

genuine issue of material fact as to these claims. The district court also did not err
in finding that NPS was not vicariously liable for Woodfin’s potential assault and
battery. 6

While NPS knew of the inappropriate conduct, it did not ratify

Woodfin’s actions but rather responded to Stancombe’s complaint by taking
reasonable steps to ensure that Woodfin did not continue his inappropriate
behavior. See id. at 401. The steps taken to separate Woodfin and Stancombe
distinguish this case from the facts of Potts, where the supervisor, after hearing of
the victim’s allegations of sexual harassment and counseling the harasser, allowed
the harasser and the victim to continue to work together “without supervision,” and
the harassing conduct continued. See id. at 400.
VI. Conclusion
For the reasons stated, we affirm in its entirety the judgment of the district
court in favor of Defendants-Appellees NPS and Woodfin.
AFFIRMED.

6

As mentioned previously, the district court denied Woodfin summary judgment on the
assault-and-battery claim and then dismissed it without prejudice.
26