Thornton v. Flavor House Products, Inc. et al

Filing 100

MEMORANDUM OPINION AND ORDER that Williams's 68 Motion for Summary Judgment is GRANTED and all claims against Williams are DISMISSED with prejudice. As to Flavor House's 70 Motion for Summary Judgment, it is ORDERED: (1) that the motion with respect to the sexual harassment claim is DENIED; and (2) that the motion with respect to all other claims is GRANTED. Signed by Honorable William Keith Watkins on 12/19/2008. (Attachments: #(1) Civil Appeals Checklist)(dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION L IN D A THORNTON, P l a in tif f , v. F L A V O R HOUSE PRODUCTS, IN C ., et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

C A S E NO. 1:07-CV-712-WKW [WO]

M E M O R A N D U M OPINION AND ORDER B e f o re the court are two motions for summary judgment, one filed by Defendant F r a n k lin D. Williams, Jr. ("Williams") (Doc. # 68), and the other, by Defendant Flavor H o u s e Products, Inc. ("Flavor House") (Doc. # 70), which was filed with an accompanying a m e n d e d brief (Doc. # 77) and evidentiary submission (Doc. # 72).1 Plaintiff filed a response b rief opposing summary judgment (Doc. # 78) with an evidentiary submission (Doc. # 79), to which Flavor House replied (Doc. # 80). After careful consideration of the arguments of c o u n se l, the relevant law and the record as a whole, the court finds that Williams's motion f o r summary judgment (Doc. # 68) is due to be granted, and that Flavor House's motion for s u m m a ry judgment (Doc. # 70) is due to be denied in part, and granted in part.

Because Williams's motion for summary judgment relies on Flavor House's summary judgment brief and evidentiary submission, the arguments with respect to Flavor House's motion are attributable to Williams as well.

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I . FACTUAL AND PROCEDURAL BACKGROUND A. F a c tu a l Background T h is dispute arises from Thornton's former employment at Flavor House's Dothan, A la b a m a facility, which processes and packages nuts. (Thornton Dep. vol. 1, 29, Feb. 19, 2 0 0 8 (Evidentiary Submission Summ. J. Ex. A).) At the relevant time of her employment, T h o rn to n operated a machine that affixed labels on jars and cans for nuts. (Thornton Dep. v o l. 1, 28.) In 2003, Williams, another Flavor House employee, was assigned to train T h o rn to n on running a label machine when she was promoted to label operator. (Thornton D e p . vol. 1, 58.) It was at that time that Williams allegedly began harassing Thornton.2 She tes tifie d in her deposition that he called her a "godd**n motherf***ing b****" and a "stupid b * * * * ," even though she told him not to, and threw his hands in the air and walked away f ro m her.3 (Thornton Dep. vol. 1, 68-69.) She testified that he threw cans of peanuts at her o n e day when she turned the wrong belt off and jammed the machine. (Thornton Dep. vol. 1 , 76-77.) She also testified that Williams cursed her out at least every other day. (Thornton D e p . vol. 1, 65-66.) She verbally complained about Williams frequently to Fannie Ashe and

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The facts are viewed under the appropriate standard of review. See infra pp. 12-15.

Language in the evidence that is profane or particularly vulgar language has been modified. Because this is a trial court, however, the luxury of presenting the facts euphemistically or generally in the interest of "brevity and dignity" is not available, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 76-77 (1998) (Scalia, J.). Thus, in order to convey its context and impact, evidence conveying vulgar ideas or images with less than profane language has not been modified. This tepid attempt to preserve civility (or, at the very least, not to contribute to its erosion) is intended to impress upon parties that incivility in the work place, even if tolerated, is expensive, hurtful and bad business, not to mention, in some instances, unlawful.

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M e lv in Hutchins 4 ("Hutchins") (Thornton Dep. vol. 1, 60-65). Flavor House moved a d if f ere n t employee into Williams's position but brought Williams back quickly because he ra n the machine better. (Thornton Dep. vol. 1, 80-81.) Thornton was told to just get along w ith Williams because he was the only one who could run the machine. (Thornton Dep. vol. 1 , 81.) P r o b le m s between Thornton and Williams did not surface again until 2005, after T h o rn to n had moved to Line 3 as a label operator and Williams was made team leader of L in e 3. (Mary Ann Boyer Dep. vol. 1 Ex. 2, Mar. 4, 2008 (Evidentiary Submission Summ. J . Ex. C).) Williams, along with others, allegedly called Thornton names and pushed and s h o v e d her to move her away from the machine. (Thornton Dep. vol. 2, 230-231, Mar. 3, 2 0 0 8 (Evidentiary Submission Summ. J. Ex. A).) Thornton testified that Williams also c u rs e d at her. (Thornton Dep. vol. 2, 356, 359.) Williams has admitted that he called T h o rn to n a "b****" and that he had never called a man a "b****" or "bastard" to his face. (F r a n k lin Williams Dep. 183, 184-85, June 10, 2008 (Evidentiary Submission Summ. J. Ex. G ).) Thornton said Williams also talked about other women, including his mother and d a u g h te r, as "b****es." (Thornton Dep. vol. 2, 270.) In her unemployment compensation h ea rin g , Thornton stated that Williams "continuously put down females" and called her a " G o d d*** motherf***er" every day, to her face. (Unemployment Hr'g Tr. 21 (Tommy

Fannie Ashe was Thornton's label operator supervisor at the time (Thornton Dep. vol. 1, 2930), and Melvin Hutchins was the supervisor over Fannie Ashe and other supervisors (Thornton Dep. vol. 1, 31).

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N a n c e Dep. Ex. 7, June 10, 2008 (Evidentiary Submission Summ. J. Ex. J)).)5 Thornton also s ta te d in a declaration filed with her response brief that she never heard male employees c u r s e at other male employees in the same way they directly cursed at female employees. (T h o rnto n Decl. ¶ 3 (Evidentiary Submission Resp. Ex. A).) Thornton felt that Williams's comments were threatening. (Thornton Dep. vol. 1, 1 4 3 .) She specified that his throwing a pallet on the floor repeatedly, and throwing a garbage b a g full of cans, while cursing, and in front of others, as she asked the mechanic to call the s u p e rv is o r, was threatening. (Thornton Dep. vol. 1, 143-44.) In response to the question of w h e th e r Williams was "threatening in the sense that he was stating something that he was g o in g to do to [her]," Thornton responded that he was threatening when he stated that "he w a sn 't going to put up with the f***ing shit no more" as he was throwing the pallet or g arb ag e bags. (Thornton Dep. vol 1, 144 (emphasis added).) The altercation on June 14, 2006, between Thornton and Williams was particularly c o n te n tio u s . Thornton had asked Williams to help her with rework that needed to be done in her work area. (Thornton Dep. vol. 1, 153.) Thornton claims Williams then "flipped out" o n her, yelling curse words. (Thornton Dep. vol. 1, 153-54.) This explosion, Thornton t e s t i f ie d , was "worse" than anything she had ever seen. (Thornton Dep. vol. 1, 155.) Her a c co u n t was that he physically threw things, picking up and throwing down the pallet, and th ro w in g the bag, which caused the rework on the table to come flying at her, and he was
5

At the time of the unemployment compensation hearing, Thornton was Ms. Parrish. (Nance

Dep. 73.)

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" a ctin g crazy . . . continuously staring at me and cussing." (Thornton Dep. vol. 1, 156.) After th e incident, Williams paced back and forth and stared at Thornton, and the next day, he s to o d in front of the rework table "just glaring" at her and then stood in front of her machine g la rin g at her, and would pace back and forth between the two. (Thornton Dep. vol. 1, 160; s e e also Cooke Documentation Form (Ricky Smothers Dep. Ex. 3, May 12, 2008 (E v id e n tia ry Submission Summ. J. Ex. D)) (detailing with less recollection, some of the same incid en t, though muting Williams's conduct somewhat); Long Documentation Form (S m o th e rs Dep. Ex. 4) (same); McInnis Documentation Form (Chris Jordan Dep. Ex. 5, May 1 2 , 2008 (Evidentiary Submission Ex. E) (same).) On June 15, Thornton told Hutchins that s h e did not feel safe working with Williams, and Thornton was moved to Line 5 during the s u b s e q u e n t investigation.6 (Thornton Dep. vol. 1, 160-61.) On Line 5, she remained a label o p e r a to r , and her pay did not change. (Thompson Dep. vol. 1, 162, 165.) Flavor House c o llec ted documentation from the parties and other employees about the June 14 incident (see B r. Supp. Summ. J. 11), and documented a 1 s t Step Written Counseling for Williams for u s in g "profanity in the presence of other co-workers" (Order on Pretrial Hearing, Doc. # 97 (p a rties ' stipulations)). On June 16, Thornton tried to resign, and during the meeting with p e rs o n n e l, she was hysterical and was carrying a screwdriver to defend herself from Williams if he came near her again. (Thornton Dep. vol. 1, 175.) Thornton quit a few days later. (T h o rn to n Dep. vol. 1, 177-81.)
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Thornton testified that she was told the move would last for three months during which time Flavor House would determine who was the problem. (Thornton Dep. vol. 2, 377.)

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T h o rn to n also testified to Williams's specific conversations that concerned his sex life , which occurred about three times a week during her employment.7 (Thornton Dep. vol. 2 , 360-61.) In her deposition, Thornton said that Williams was "always vocal about his sex lif e ." (Thornton Dep. vol. 2, 140.) She claimed that he said the following in her presence: (1 ) that he knew his wife was cheating "because when [they] f*** ­ the way she feels inside is loose"; (2) that after his wife left him, and when he started "going with this girl that works a t the plant," that he had not slept because they had "f***ed four hours" and they had been t o g e th e r in the backyard in the car so that the children would not see; (3) that this girl had g iven him a blow job and that if his wife had done that, he would not have divorced her. (T h o rn to n Dep. vol. 1, 140-41.) When asked after recalling those comments if there was "a n ything else," Thornton stated: "I'm sure there is. I just can't ­ I'm nervous and I can't re c a l l right now." (Thornton Dep. vol. 1, 141.) Thornton also complained that when W illia m s talked, he had a "habit" of "touching" people to get their attention. (Thornton Dep. v o l. 1, 183, 189.) He would "continous[ly]" touch Thornton on the upper part of her arm d e sp ite her protests, and she found this "aggravating." (Thornton Dep. vol. 1, 183, 189.) She sa id that he also had a habit of calling females "girlfriend," though Thornton told him not to ca ll her that. (Thornton Dep. vol. 1, 183.)

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Williams allegedly would bring up his sex life "[o]ut of blue." (Thornton Dep. vol. 2, 360.)

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L a te r, in the declaration she filed with her response brief, Thornton added that W illia m s also said the following 8 : (1) that he was going to "f***" the personnel resource e m p lo ye e ; (2) that he planned to invite that employee to the Christmas party (and that he a lre a d y had her address) so that there would be two people, his wife and the personnel re so u rc e employee, that he was "f***ing," at the same table; (3) that he and his wife would

Flavor House moved to strike these portions of Thornton's declaration under a theory that it is a "sham" declaration. (Doc. # 81 at 1.) The motion was denied and construed as supplemental argumentation to Flavor House's reply. (Doc. # 82.) "[A]n affidavit [or declaration] can be disregarded when it constitutes a sham . . . ." Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986) (citing Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656 (11th Cir. 1984)). A "flat contradiction" between an earlier deposition and an affidavit/declaration that is "unexplained" is "inadequate to raise a genuine issue of fact which was denied to exist by the earlier deposition." Id. Importantly, however, "[a] definite distinction must be made between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence." Id. "Variations in a witness's testimony and any failure of memory throughout the course of discovery create an issue of credibility," and issues of credibility with respect to witnesses and weight of evidence "are questions of fact which require resolution by the trier of fact." Id. at 954. To hold otherwise "would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the witness (in this case, the [declarant]) was stating the truth." Id. at 953-54. Thus, a declaration is a sham only "`when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact . . . [and that party attempts] thereafter [to] create such an issue with [a declaration] that merely contradicts, without explanation, previously given clear testimony." Id. at 954 (quoting Van T. Junkins, 736 F.2d at 657). Every "discrepancy" in a declaration does not justify a court's refusing to credit it, and a statement needs to be more than "at odds" with statements in an earlier deposition. Id. Statements should be "inherently inconsistent" and "create an irreconcilable conflict." Id. In this case, Thornton's deposition and affidavit are not inherently and irreconcilably conflicting with respect to the frequency and substance of the sexual comments she attributes to Williams. Contrary to Flavor House's arguments (Mot. to Strike ¶¶ 2, 4), a statement that Williams made comments of a sexual nature "several times" does not inherently contradict a later statement that the comments occurred every day. The statements may be at "odds," but a trier of fact can determine the credibility of Thornton and the truthfulness of her statements. Similarly, Flavor House may be justifiably suspicious of Thornton's sudden recollection of several additional and damaging comments Williams allegedly made. (Mot. to Strike ¶¶ 3, 4.) Thornton never said in her deposition, however, that the comments she recalled at the deposition were an exclusive description of Williams's conversations. In fact, she noted during her deposition that she was nervous but that she was sure there were other comments that she just could not recall. A failure to recall additional comments does not preclude later recalling those comments. The effect the later recollection has on Thornton's credibility, and the truthfulness of her claims is a credibility determination the trier of fact should make.

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" f * * * " all night until it was time to shower and go to work (stated on several occasions); (4) th a t his wife was "f***ing a n*****" on the sanitation shift and that though not racist, he b e lie v e d the races "shouldn't mix"; (5) that his girlfriend did not want a baby girl, but that h e would "f***" her enough that she would become pregnant; (6) that his wife said she w o u ld have given him blow jobs if she had known that was what he wanted; (7) that he was " a lw a ys commenting about" how "hard" he would get and for how long; (8) that he had to h a v e sex every day, that he did not enjoy pornography and did not "please" himself sexually, s o he had to have sex "all of the time." (Thornton Decl. ¶ 9.) Thornton claims that "[t]hese c o m m e n ts and others like them were just part of Williams['s] everyday conversation at w o rk ." (Thornton Decl. ¶ 9.) Against Thornton's protests, Williams continued to talk about h is sex life, stating on one occasion that he had to talk to Thornton because he could not talk to another friend, whom he called a "whore" who was "f***ing" everyone in the plant. (T h o rnto n Decl. ¶ 9.) Another former employee, Kimberly Perkins ("Perkins"), also testified to Williams's c a llin g Thornton a b**** "and things like that," and Perkins also told Thornton that Williams h ad called Thornton a b****. (Kimberly Perkins Dep. 113-14, June 11, 2008 (Evidentiary S u b m is s io n Ex. F).) Perkins noted that Williams used profanity every day. (Perkins Dep. 1 1 5 .) She also testified to his telling "dirty jokes" and comments about the way women loo k ed , specifically, the way temporary employees and personnel resources coordinators lo o k e d , though Perkins apparently was not offended by his remarks. (Perkins Dep. 117-119.)

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Williams was not the only person about whom Thornton complained. She testified in her unemployment compensation hearing that when she assumed the Line 3 position, a m a le employee told her that it was a "man's job." (Unemployment Hr'g Tr.; see also T h o rn to n Dep. vol. 1, 200-01 (using the words "man's position" instead).) She also testified to the behavior of male mechanics more generally. The male mechanics would work on her m a c h in e or make adjustments to it if she could not make the adjustments herself in five m i n u te s (Thornton Dep. vol. 1, 202),9 and when she called for them, they would ask her "w h at the f*** was the problem now" and "why can't you just run the mother f***er" (T h o rn to n Dep. vol. 1, 229). One mechanic told her to "take [her] ass right back to the label m a c h in e where [she] belong[ed]" and called her a "f***ing ass hole," at which, a second s u p e rv is o r merely laughed. (Thornton Dep. vol. 2, 231.) The male mechanics told her that s h e "did not know what the hell [she] was doing" and to "just keep running the son of a b * * * * ." (Thornton Dep. vol. 2, 230.) Thornton added that she never saw male operators tre a ted that way by the male mechanics (Thornton Dep. vol. 2, 238-39), and that the male m e c h a n ics supposedly gave the male operators more than five minutes to adjust their m a c h in e s (Thornton Decl. ¶ 5). Perkins, also a label operator, testified that the male m e c h an ic s treated her in a similar way, screaming and yelling at her (Perkins Dep. 32) and c o m p la in in g that she "needed to get the hell off that d*** machine so they can get somebody

According to Thornton, mechanics replaced parts or fixed mechanical problems, but did not adjust or run the machines. (Thornton Dep. vol. 2, 229.)

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e l s e in there that can do the job" and that she and others are "always f***ing up these m ac h ines and [the mechanics] have to come behind . . . and fix them" (Perkins Dep. 42).1 0 T h o rn to n complained to her physician in October 2005 of "increased stress at work" an d "being harassed." (Dr. Bendinger Dep. 21, Ex. 1 at 4, June 11, 2008 (Evidentiary S u b m i s s io n Resp. Ex. C).) She also allegedly reported the incidents to several key

e m p lo ye e s at Flavor House. (See, e.g., Resp. 7-8.) Because Flavor House does not challenge t h e theory on why it would be liable on the federal claims if the allegations against its e m p lo ye e s are proven, and because Flavor House hinges its opposition to Williams's statelaw claims on the underlying torts, it is unnecessary at the summary judgment stage to narrate o n when and how and to whom Thornton reported her complaints. Thornton alleges that in response to those complaints, Flavor House took retaliatory a c tio n s . Three specific write-ups are relevant: (1) one for putting the incorrect date on a s c h e d u le , though Thornton claims other employees were not written up; (2) another for h o llering at another employee, which Thornton claims was necessary in order to be heard o v e r a machine; and (3) the other for using offensive language against another employee who w a s also written up for throwing a jar that hit Thornton after bouncing off a rail. (Thornton D e p . vol. 2, 281-83; Mary Ann Boyer Decl. Ex. B (Evidentiary Submission Summ. J. Ex.
Thornton also alleges that Tom Beard, a male employee, made a sexually explicit and lewd comment to her when she was not smiling when she came to work. (Resp. 7.) Flavor House argues in its reply that Thornton cannot rely on this allegation because it is time-barred. (Reply 5-6.) It is unnecessary to resolve this challenge at this stage as Beard's comments are not determinative of the outcome of Thornton's sexual harassment claims, and cannot be considered for her state-law claims against Williams or against Flavor House on a theory of ratification (Compl. ¶¶ 64, 70 (alleging Flavor House ratified Williams's conduct).)
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K ).) She also claims Flavor House's reprimand on March 7, 2006, her only formal discipline (B r. Supp. Summ. J. 17-18), was retaliatory. (Resp. 50.) B. P r o c e d u r a l Background T h o rn to n filed a charge of discrimination with the Equal Employment Opportunity C o m m is s io n ("EEOC") on September 21, 2006. (EEOC Charge (Thornton Dep. vol. 1 Ex. 1 5 ).) She stated claims for sexual harassment, discrimination, and retaliation. (EEOC C h a r g e .) Thornton requested a right to sue letter, which she received on May 8, 2007. ( E E O C Notice (Thornton Dep. vol. 2 Ex. 23).) Thornton filed this lawsuit on August 6, 2 0 0 7 , alleging violations of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. ("Title V II" ) against Flavor House for sexual discrimination,1 1 sexual harassment and retaliation (C o u n t I), state-law invasion of privacy against both Defendants (Count II), state-law outrage a g a in s t both Defendants (Count III), and state-law negligent and/or wanton hiring, s u p e rv is io n , hiring, and retention against Flavor House (Count IV). (Compl. (Doc. # 1).) In addition to the summary judgment motions are two other pending motions. Thornton m o v e s to strike Flavor House's affirmative defenses (Doc. # 63) and to supplement her e v id e n tiary submission in response to the motions for summary judgment (Doc. # 84). Both o f these motions will be addressed in a separate order.

Thornton has conceded her sexual discrimination claims for disparate pay and promotion, due to the applicable statute of limitations. (Resp. 30 n.14.)

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I I . JURISDICTION AND VENUE T h e re is subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 for all claims arising u n d e r federal law. There is also original jurisdiction over claims based upon violations of c iv il rights, see 28 U.S.C. § 1343, and violations of Title VII specifically, 42 U.S.C. § 2000e5 (f )(3 ), and jurisdiction over claims under the Declaratory Judgment Act, 28 U.S.C. §§ 22012 2 0 2 . Finally, state-law claims can be heard in federal court under supplemental jurisdiction, 2 8 U.S.C. § 1367(a). The parties do not contest personal jurisdiction or venue, and the court f in d s that there are allegations sufficient to support both. I I I . STANDARD OF REVIEW " S u m m a r y judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any, show there is no g e n u i n e issue as to any material fact and that the moving party is entitled to judgment as a m atter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2 0 0 7 ) (per curiam) (citation to former rule omitted); Fed. R. Civ. P. Rule 56(c), as amended D ec em b er 1, 2007 (Summary judgment "should be rendered if the pleadings, the discovery a n d disclosure materials on file, and any affidavits show that there is no genuine issue as to a n y material fact and that the movant is entitled to judgment as a matter of law.").1 2 The

Effective December 1, 2007, "[t]he language of Rule 56[was] amended . . . to make the rule[ ] more easily understood and to make style and terminology consistent throughout the rules. These changes . . . are stylistic only." Fed. R. Civ. P. 56 advisory committee notes. Thus, although Rule 56 underwent stylistic changes, its substance remains the same and therefore, all cases citing the prior rule remain equally applicable to the current rule.

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p a rty moving for summary judgment "always bears the initial responsibility of informing the d is tric t court of the basis for its motion, and identifying those portions of [the record, in c lu d in g pleadings, discovery materials and affidavits], which it believes demonstrate the a b s e n c e of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1 9 8 6 ). The movant may meet this burden by presenting evidence indicating there is no d is p u te of material fact or by showing that the nonmoving party has failed to present e v id e n c e in support of some element of its case on which it bears the ultimate burden of p ro o f . Id. at 322-24. If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its c l a i m s for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); C e lo te x , 477 U.S. at 324; Fed. R. Civ. P 56(e)(2) ("When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or d e n ia ls in its own pleading; rather, its response must . . . set out specific facts showing a g e n u in e issue for trial."). What is material is determined by the substantive law applicable to the case. Celotex, 477 U.S. at 248; Lofton v. Sec'y of the Dep't of Children & Family S e r v s ., 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that are material under the su b stan tiv e law governing the case will preclude entry of summary judgment."). F u rth er m o re , "[t]he mere existence of some factual dispute will not defeat summary ju d g m e n t unless that factual dispute is material to an issue affecting the outcome of the case."

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McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (internal q u o ta tio n marks and citation omitted). A genuine issue of material fact exists when the nonmoving party produces evidence th a t would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F .3 d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001) (t o establish a genuine issue of material fact, the nonmoving party must produce evidence s u c h that a reasonable trier of fact could return a verdict in his favor). If the evidence on w h ich the nonmoving party relies, however, "is merely colorable . . . or is not significantly p ro b a tiv e . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-50 (1986). "A mere `scintilla' of evidence supporting the [nonmovant's] position w ill not suffice; there must be enough of a showing that the [trier of fact] could reasonably f in d for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation o m itte d ), and the nonmoving party "must do more than simply show that there is some m e ta p h ys ic a l doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio C o r p ., 475 U.S. 574, 587 (1986). Conclusory allegations based on subjective beliefs are lik e w is e insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (p e r curiam) (Plaintiff's "conclusory assertions . . . in the absence of supporting evidence, a re insufficient to withstand summary judgment."); Harris v. Ostrout, 65 F.3d 912, 916 (11th C ir. 1995) (grant of summary judgment appropriate where inmate produces nothing beyond

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" h is own conclusory allegations" challenging actions of the defendants); Fullman v. G r a d d ic k , 739 F.2d 553, 557 (11th Cir. 1984) ("[M]ere verification of a party's own c o n c l u s o ry allegations is not sufficient to oppose a motion for summary judgment . . . ."). H e n c e, when a plaintiff fails to set forth specific facts supported by appropriate evidence s u f f ic ie n t to establish the existence of an element essential to his case and on which the p lain tiff will bear the burden of proof at trial, summary judgment is due to be granted in f a v o r of the moving party. Celotex, 477 U.S. at 323 ("[F]ailure of proof concerning an e ss e n tial element of the nonmoving party's case necessarily renders all other facts im m a ter ial." ); Barnes v. Sw. Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on a n y part of the prima facie case the plaintiff presents insufficient evidence to require s u b m is s io n of the case to the trier of fact, granting of summary judgment is appropriate.). Thus, in cases where the evidence before the court is admissible on its face or can be red u ce d to admissible form and indicates there is no genuine issue of material fact, and where the party moving for summary judgment is entitled to it as a matter of law, summary ju d g m e n t is proper. Celotex, 477 U.S. at 323-24 (summary judgment appropriate where p le a d in g s , evidentiary materials and affidavits before the court show there is no genuine issue as to a requisite material fact).

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I V . DISCUSSION A . Sexual Harassment (Title VII) T itle VII forbids sex-based discrimination that alters the terms and conditions of e m p l o ym e n t in one of two ways: either through a tangible employment action such as pay d e c re a se , demotion or termination, or through the "creation of a hostile work environment c a u s e d by sexual harassment" that is severe enough to effect an alteration. Baldwin v. Blue C r o s s /B lu e Shield of Ala., 480 F.3d 1287, 1300 (11th Cir. 2007) (citing § 2000e-2(a)(1); H u ls e y v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir. 2004)). To recover for a hostile w o rk environment, an employee must prove that: (1) she belongs to a protected group; (2) she has been subject to unwelcome s e x u a l harassment; (3) the harassment was based on her membership in a p ro tec ted group; (4) the harassment was sufficiently severe or pervasive to a lte r the terms and conditions of her employment and create an abusive w o r k in g environment; and (5) a basis for holding the employer liable exists.

R e e ve s v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1143 (11th Cir. 2008). Flavor H o u s e argues that it is entitled to summary judgment because if there was harassment, it was n o t sex-based (element three) or sufficiently severe or pervasive (element four). (Br. Supp. S u m m . J. 22.) The "based on" element requires an employee to "essentially show `that similarly s itu a te d persons not of [her] sex were treated differently or better.'" Reeves, 525 F.3d at 1143 (o n e set of internal quotation marks omitted) (alteration in original) (quoting Baldwin, 480 F .3 d at 1302). Sex-specific language "satisfies the `based-on' element in a sexual 16

h a ra ss m e n t hostile work environment case even when the language does not target the p la in tif f ." Id. at 1144. Sex-specific language is language that is "more degrading to women th a n to men," Baldwin, 480 F.3d at 1302, and sex-specific language has a discriminatory e f f e c t even if it was used indiscriminately and not targeted at women, Reeves, 525 F.3d at 1 1 4 4 -4 5 . It is discriminatory regardless of who is targeted because the language itself is in h e r e n tly offensive to females.1 3 See id. (applying the logic of Walker v. Ford Motor Co., 6 8 4 F.3d 1355 (11th Cir. 1982), which addressed race-specific language). Words like "b****" and "whore" are sex specific, but so were the "conversations and jo k e s" in Reeves that "permeated the office on a daily basis," pertaining to sexual anatomy, m astu rba tio n and pornography. 525 F.3d at 1144. One of the plaintiff's co-workers " f r e q u e n tly used sexually crude language," including phrases, jokes, comments and remarks. Id . at 1141. He used phrases like "f***ing b****" and "f***ing whore" when hanging up th e phone, and called the only other female employee a "b****" and discussed her "big ass." Id . It was also "commonplace" for employees to tell sex jokes. Id. The plaintiff additionally h e a rd another co-worker discuss masturbation, sexually explicit songs, and his experience in a hotel with naked women. Id. at 1142. The plaintiff's manager used phrases like "lazy, g o o d -f o r-n o th in g b****" and "stupid b****," and described the other female employee as " [ s]h e may be a b****, but she can read" and "[s]he's got a big one." Id. (alteration in

Flavor House argues that for conduct to be "based on" sex, it must be in the form of "`sexual advances, requests for sexual favors, [or] conduct of a sexual nature.'" (Br. Supp. Summ. J. 22 (quoting an Eleventh Circuit case).) Reeves establishes that sex-specific language can be conduct based on sex.

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o rig in a l). To make matters worse, explicitly sexual radio programming permeated the w o rk p la c e . Id. The programming included discussions on breast size, sexual arousal and f e m a le indications of arousal, masturbation, erotic dreams, ejaculation, and female p o rn o g ra p h y, and the advertisements discussed sexual favors, unconventional sexual s c e n a rio s and sexual performance. Id. The language permeating Thornton's work environment is not meaningfully d is tin g u is h a b le from that in Reeves. Williams used similar sex-specific profanity, like " b * * * * ," and sometimes, actually directed it at Thornton. Even more salient, however, is W illia m s 's graphic and crude discussions of his sex life and his sexual predilections and in te n tio n s . Additionally, Williams's conduct was not only in the presence of Thornton. P e rk in s testified to Williams using the word "b****" and to his "dirty jokes" and comments a b o u t specific women's anatomy.1 4 These facts seen in the light most favorable to Thornton s u f f ic ie n tly establish the based-on element of her claim.1 5

Williams also used derivations of the word "f***." Thornton admits that she too used the word "f***." (See Thornton Dep. vol. I, 75-76.) The Eleventh Circuit in Baldwin lumped "f***" and "f***ing" into a set of words that it considered "relatively gender-neutral." 480 F.3d at 1301. Using the word indiscriminately toward males and females would not be Title VII conduct. Id. It seems reasonable, however, to assume that using "f***" directly toward a female in an already charged context would change the qualitative contours of that language from when it is used indiscriminately or by a female. As to Williams's touching, in isolation, it could be perceived as gender-neutral, but in this context and given his relationship with Thornton, the touching is not not based on sex, at least as found at this stage in the proceedings. The testimony that male mechanics seemed particularly exasperated with the females running the label operators, is relevant, but not necessary to reach the summary judgment determination.
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F la v o r House also argues, however, that the conduct was not sufficiently severe or p erv asiv e for an actionable sexual harassment claim. (Br. Supp. Summ. J. 24.) "The `severe o r pervasive' element `tests the mettle of most sexual harassment claims.'" Reeves, 525 F.3d a t 1145. "`Title VII does not prohibit all verbal or physical harassment in the workplace . . . .'" Oncale, 523 U.S. at 80. It is "not a federal civility code" designed to "`purge the w o rk p la c e of vulgarity.'" Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (internal quotation m a rk s omitted), 1252 n.10 (11th Cir. 1999) (en banc) (quoting Gleason v. Mesirow Fin. Inc., 1 1 8 F.3d 1134, 144 (7th Cir. 1997)). "Unpleasant" or "rude" conduct in the workplace, h o w e v e r undesirable, is not discriminatory sexual harassment. See id. at 1253-54. Nor does T itle VI require "asexuality [or] androgyny in the workplace." Oncale, 523 U.S. at 81. The " `g e n u in e but innocuous differences in the ways men and women routinely interact with m e m b e r s of the same sex and of the opposite sex,'" do not fall under Title VII protection, nor d o "`simple teasing,' offhand comments, and isolated incidents (unless extremely serious)." F a r a g h e r v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted) (quoting O n c a le , 523 U.S. at 81, 82). "`[D]iscriminatory intimidation, ridicule, and insult'" must be severe enough to " `c re a te an abusive work environment.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (q u o tin g Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). The severity of h a ra ss m e n t depends on the "social context in which the particular behavior occurs and is

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e x p e rie n c e d by its target." 1 6 Oncale, 523 U.S. at 81. "The real social impact of workplace b e h a v io r often depends on a constellation of surrounding circumstances, expectations, and re la tio n s h ip s which are not fully captured by a simple recitation of the words used or the p h ys ic a l acts performed." Id. at 81-82. For conduct to be sufficiently severe or pervasive to alter an employee's terms and c o n d itio n s of employment, "[t]he employee must `subjectively perceive' the harassment as su f f icie n tly severe [or] pervasive to alter the terms or conditions of employment, and this s u b je c tiv e perception must be objectively reasonable." Mendoza, 195 F.3d at 1246 (quoting H a rr is, 510 U.S. at 21-22). "`[T]he objective severity of harassment should be judged from th e perspective of a reasonable person in the plaintiff's position, considering `all the c irc u m s ta n c es .''" Id. (quoting Oncale, 523 U.S. at 81). The Supreme Court has identified f o u r factors to consider for determining severity or pervasiveness 1 7 : "(1) the frequency of the c o n d u c t; (2) the severity of the conduct; (3) whether the conduct is physically threatening or h u m ilia tin g , or a mere offensive utterance; and (4) whether the conduct unreasonably in te rf e re s with the employee's job performance." Reeves, 525 F.3d at 1145-46 (citing

To illustrate this point, Flavor House quotes the following from a Tenth Circuit case: "We must evaluate [the] claim of gender discrimination in the context of a blue collar environment where crude language is commonly used by male and female employees. Speech that might be offensive or unacceptable in a prep school faculty meeting, or on the floor of Congress, is tolerated in other work environments," Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1538 (10th Cir. 1995). (Br. Supp. Summ. J. 25.) These factors are not, however, an exhaustive list of what may be considered. See, e.g., Harris, 510 U.S. at 24 (Scalia, J., concurring); Miller v. Kenworth of Dothan, Inc., 377 F.3d 1269, 1276 (11th Cir. 2002).
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F a r a g h e r, 524 U.S. at 787-88). "[N]o single factor is determinative, and either severity or p e rv a siv e n e ss can satisfy the element, if sufficient." Id. at 1146 (citation omitted). Conduct that occurs every day weighs the frequency factor in the employee's favor. S e e Reeves, 525 F.3d at 1146. Even "`roughly fifteen separate instances of harassment over th e course of four months,'" has been held sufficiently frequent.1 8 Miller, 277 F.3d at 1277 n .6 (quoting Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th C ir. 2000)). Yet it is "not simply some `magic number'" of insults that makes an

e n v iro n m e n t hostile, and "repeated incidents of verbal harassment that continue despite the e m p lo ye e 's objections" are indicative of a hostile environment. Id. at 1276 (quoting Shanoff v . Ill. Dep't of Human Servs., 258 F.3d 696, 704 (7th Cir. 2001)). In this case, Thornton te s tif ie d to Williams's sexual comments occurring three times a week, that he was always v o c a l about it, and later, stated that they amounted to everyday conversation. She also noted re p e ate d cursing and interactions characterized by inflammatory behavior. He also touched h e r arm continuously. Thornton's negative interactions with the mechanics were more than is o la te d events. Frequency weighs in favor of Thornton. S e v e rity is determined by "all the circumstances" and not just each isolated instance. R e e ve s, 525 F.3d at 1146. The court in Reeves took into account the number of women in th e workplace relative to the number of men. Id. For the only woman to be exposed to

It should be noted that in Johnson, the frequency was noted alongside the severity of the conduct and was distinguished from other cases where there were fewer instances and less objectionable conduct. 234 F.3d at 509.

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s e x u a lly explicit words and descriptions weighed in favor of severity. Id. When the words a n d descriptions were not directed at the plaintiff, however, that was a counterweight to any s e v e rity in favor of the employer. Id. In fact, even had the language been specifically d ire c te d at the employee, that would not have been determinative. Id. at 1146 n.5. But the u s e of derogatory names in an intimidating manner, shouting at an employee in the course o f berating her about her job performance, and arguing with an employee, or being angry w ith her has been found to "r[i]se above the level of off-handed comments in the course of c a su a l conversation that the Supreme Court has refused to find actionable." Miller, 277 F.3d a t 1277. Some of Williams's and the mechanics' conduct was directed at Thornton, though th e more explicitly sexually conduct does not appear to have been so. Given the totality of th e circumstances, however, specifically the public name-calling and harassing behavior d irec ted at Thornton in connection with the repeated sexual comments, the conduct is severe e n o u g h not to tilt the scales toward Flavor House. The details of this behavior have been re c ite d . Physically threatening and humiliating conduct is another factor for determining w h e th e r the environment was objectively hostile. The Eleventh Circuit has refused to find f o llo w in g an employee around or brushing up against her hip physically threatening or in tim id a tin g but the employee in that instance never testified to the following or staring as " sta lk in g ," "leering," "intimidating," or "threatening," or to his following her to where she w o rk e d and spent most of her time. Mendoza, 195 F.3d at 1249 (citing a case where the

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b e h a v io r was "the kind of non-threatening `utterance' that could not alone support [a] h o s tile -e n v iro n m e n t claim," id. at 1248). Thornton did find Williams's language threatening, a n d it was accompanied sometimes by his throwing objects in evident anger. His later glares f o llo w e d a particularly physical outburst. Williams's repeated use of physical force to e x p re ss his frustration, his repeated touching, and his use of profane and sexually charged la n g u a g e separates his conduct from conduct that is just offensive or creepy. It is objectively reasonable that a woman in Thornton's position would have also felt h u m ilia te d . See Reeves, 525 F.3d at 1147. It is true that the employees in this particular w o rk environment were arguably accustomed to profane and foul language. The behavior m a y seem less humiliating taken in this context. Plus, there were other female employees w o rk in g with Thornton, the sexually explicit language did not concern Thornton herself, and s h e used profanity on occasion as well. The sexually explicit language, however, was p a rtic u la rly graphic. Also, Williams cursed and threw things at and around Thornton in front o f others, in relation to her work. Additionally, the male mechanics' demeaning attitude tow ard Thornton, was expressed in front of others and concerned her job performance. In M ille r, the Eleventh Circuit held that the very nature of the co-workers' comments (in that ca se, ethnic slurs), and the fact that the comments were directed at the employee and were u s e d while reprimanding him in front of others, established the third factor because the c o n d u c t was humiliating and degrading. 277 F.3d at 1277. Thornton has shown evidence re a c h in g at least that level of humiliation.

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A ls o , this behavior in its totality approximates a case Mendoza cites for sufficient s e x u a l harassment. In that case, the harasser gave glaring and piercing looks, treated the f e m a le employees differently, yelled and screamed at and belittled them, "engaged in name c a llin g , derogatory remarks, verbal abuse, finger pointing, and offensive touching with w o m e n " but not with men, communicated in a way that was "`extremely hostile, very angry, v e ry aggressive'" and "`demeaning,'" but was at the same time, "`very professional'" with th e men. Mendoza, 195 F.3d at 1249 n.8 (citing and quoting Cross v. Ala. Dep't of Mental H e a lth Retardation, 49 F.3d 1490, 1495-97 (11th Cir. 1995)). Though Williams may have n e v e r acted very professionally with anyone, on the facts as shown, he acted particularly in a p p ro p ria te with the females working in a factory dominated by males where the work was w ith machinery. It is additionally plausible that the male mechanics' actions in this context, in addition to Williams's, was humiliating. For the conduct to unreasonably interfere with job performance, it "need not have ta n g ib ly affected the plaintiff's job performance in order to be actionable." Reeves, 525 F.3d a t 1147 (citing Harris, 510 U.S. at 22). In Reeves, the conduct had a physical effect on the e m p l o ye e and took time away from her work because she had to complain to her superiors, a sk her co-workers to stop, and write notes to keep track of the offensive conduct, and so the c o u rt found the factor weighed in favor of the employee. Id. The conduct at Flavor House w a s disruptive to Thornton, and it can be assumed, to other employees. As Flavor House re f ere n c es in its brief, Thornton claims she frequently complained about her work situation.

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(B r. Supp. Summ. J. 16.) She had to be moved and re-situated to accommodate the tension b e tw e e n Williams and her. Toward the end, the environment was taking a toll on her p h ysical health. (Thornton Dep. vol. 1, 170-71, 175-81.) Assessing these factors shows that what Thornton experienced at Flavor House "was n o t the `ordinary socializing' . . . that the `severe or pervasive' element is meant to filter out." R e e ve s, 525 F.3d at 1148 (citation omitted) (quoting Faragher, 524 U.S. at 788). Nor was it merely "`the ordinary tribulations of the workplace, such as the sporadic use of abusive la n g u a g e, gender-related jokes, and occasional teasing.'" Faragher, 524 U.S. at 788 (quoting B . Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992)). Thus, F la v o r House is not entitled to the "safe harbor for employers in cases in which the alleged h a ra ss in g conduct is too tepid or intermittent or equivocal to make a reasonable person b e lie v e that she has been discriminated against on the basis of sex." Mendoza, 195 F.3d at 1 2 5 1 n.9. What Thornton experienced is similar to what the plaintiff experienced in Reeves, a lb e it without the radio programming. Just because the alleged behavior did not involve p h ys ic a lly aggressive grabbing, or offering money for sex and showing pornography, see M e n d o z a , 195 F.3d at 1252 n.10 (referencing two cases), does not mean the behavior fails to qualify as harassment. The behavior Thornton endured, particularly the sexually explicit c o m m e n ts Williams made, was more than "taunting and boorish," Webb-Edwards v. Orange C o u n ty Sheriff's Office, 525 F.3d 1013, 1027 (11th Cir. 2008), petition for cert. filed, 77

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U .S .L .W . 3267 (Oct. 20, 2008) (No. 08-547). (See Br. Supp. Summ. J. 23.) The "taunting a n d boorish" conduct in Webb-Edwards was the co-worker's telling the plaintiff that she " lo o k e d hot" and that she should wear tighter clothing, and that women who dye their hair h a v e issues at home.1 9 Id. Thornton has presented evidence of frequent sex-specific p ro f a n ity and graphically sexual language. She has presented evidence of physical throwing a n d cursing and yelling, on a frequent basis, in public, by someone over her in employment. S h e has also presented evidence, though it is weaker, of other males treating her differently in her job capacity because she is female. The alleged conduct is enough to put the question o f an objectively hostile work environment to the trier of fact. T o prevail on her claims, however, Thornton also must show that she "subjectively p e rc e iv e [ d ] the environment to be abusive." Harris, 540 U.S. at 21. One of the factors in d e te rm in in g whether an employee actually found the environment abusive is her p s yc h o lo g ic a l well-being. Id. at 23; see also Walker, 684 F.2d at 1359 (holding district c o u r t ' s findings that the plaintiff felt "unwanted" and "uncomfortable" supported finding s e x u a l harassment). Thornton's doctor's note shows that Thornton told him that she was

The only comment the court stated could be construed as referring to sexual activity involving the plaintiff ­ when the plaintiff's co-worker told her husband in "taunting jest" that the co-worker was "eating [her] for lunch" ­ was "a disgusting attempt at humor" but was not accompanied by any other conduct. Webb-Edwards, 525 F.3d at 1028. It also occurred only once. See id. The Eleventh Circuit in Mendoza highlighted a Fifth Circuit case to illustrate what "`boorish and offensive'" was. 195 F.3d at 1252 (citing Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999)). In that Fifth Circuit case, there were "several fairly serious instances of harassment," including comments about the plaintiff's anatomy and attempts to look down her clothing or to touch her. Id. (citing Shepherd, 168 F.3d at 872). The conduct here is not necessarily less serious than that, and Reeves is also a controlling case.

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s u f f erin g from work stress and felt harassed at work. She also was hysterical by the end of h e r employment. She was carrying a screwdriver in her back pocket to defend herself against W illia m s if he came near her. (Thornton Dep. vol. 1, 175.) Assuming no adjudication on T h o rn to n 's credibility, her shaky psychological well-being supports finding she subjectively b e lie v e d she was offended. In Miller, the Eleventh Circuit rejected an argument that the subjective belief had not b e e n established. Miller, 277 F.3d at 1277. The plaintiff had testified that he told the p e rp e tra to r that he did not like the behavior and wanted it to stop. Id. The plaintiff also told c o -w o rk e rs he had consulted with a lawyer about the harassment. Id. He also told the p e rp e tra to r's supervisor, who was present during the abusive conduct and did nothing about it, to tell the perpetrator to watch what he said. Id. The court did find it relevant that the p la in tif f had failed to bring the complaints to his immediate supervisor even though the p lain tiff had heard at a company meeting that he should do so, but the court nevertheless held th a t a reasonable jury could still find the plaintiff subjectively perceived abuse. Id. Thornton h a s not only testified that she told Williams and others that she did not like the behavior, she a ls o officially complained about the environment, often. A jury can assess whether

T h o r n t o n ' s averments that she perceived sexual harassment are credible, but she has p re se n ted enough evidence to proceed to trial. F o r the foregoing reasons, therefore, summary judgment is due to be denied on T h o rn to n 's sexual harassment claim.

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2.

R e t a lia t io n (Title VII) T itle VII prohibits discrimination against any employee who (1) "has opposed any

p ra c tic e made an unlawful employment practice by this subchapter" (opposition clause), or (2 ) "has made a charge, testified, assisted, or participated in any manner in an investigation, p roc ee d ing , or hearing under this subchapter" (participation clause). 42 U.S.C. § 2000e-3(a). " T h e burden of proof in Title VII retaliation cases is governed by the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Goldsmith v. City of Atmore, 9 9 6 F.2d 1155, 1162-63 (11th Cir. 1993) (citation altered). A prima facie case 2 0 of

retaliation requires proof "(1) that [the employee] engaged in statutorily protected expression; (2 ) that she suffered an adverse employment action; and (3) that there is some causal relation b e tw e e n the two events." Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1021 (11th Cir. 1 9 9 4 ). If the defendant comes forward with legitimate reasons for its action, the plaintiff m u s t provide sufficient evidence that, if reasonably believed by the trier of fact, would prove b y a preponderance of the evidence that those reasons are pretextual. See Goldsmith, 996 F .2 d at 1163. To satisfy that burden of production for offering a legitimate, non-retaliatory reason f o r its actions, the employer is not required to persuade the court that those reasons were its

"[T]he term `prima facie case' has two meanings. Traditionally, it refers to the `quantum of evidence needed to create a jury question' or `a case strong enough to go to a jury.' In the McDonnell Douglas context, however, the term relates to a step in the analytical framework and means the `establishment of the facts required to establish the McDonnell Douglas presumption.'" Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1153 n.7 (11th Cir. 2005) (citation omitted).

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ac tual motivation. Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (q u o tin g Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)). The e m p lo ye r only needs admissible evidence that would allow the trier of fact to rationally c o n c lu d e that its actions were not motivated by a retaliatory motive. See id. (quoting B u r d in e , 450 U.S. at 257). When the employer offers a legitimate, non-retaliatory reason for its actions, the employee on rebuttal must meet the employer's legitimate reason "head on" a n d not by "simply quarreling with the wisdom of that reason." Chapman v. Al Transp., 229 F .3 d 1012, 1030 (11th Cir. 2000) (en banc). To meet the evidentiary burden on pretext, the e m p l o ye e must demonstrate "`such weaknesses, implausibilities, inconsistencies, in c o h e re n c ie s, or contradictions in the employer's proffered legitimate reasons for its action t h a t a reasonable factfinder could find them unworthy of credence.'" Combs, 106 F.3d at 1 5 3 8 (quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1071 (3d Cir. 1 9 9 6 ) (en banc)). F la v o r House argues that Thornton has not met the second and third elements of a p r im a face case. (Br. Supp. Summ. J. 29.) Flavor House contends that the "verbal warnings" T h o rn to n received would not dissuade a reasonable worker from making a discrimination c h a rg e , and that the only formal disciplinary action taken against Thornton at the time ­ the " M e m o to File" ­ had no impact on her employment, in addition to failing to dissuade a re a so n a b le person not to make additional complaints. (Br. Supp. Summ. J. 29-30.) In its

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r e p ly, Flavor House also argues that the constructive discharge cannot be a materially adverse e m p lo ym e n t action.2 1 (Reply 10-11.) F o r actionable retaliation, "a plaintiff must show that a reasonable employee would h a v e found the challenged action materially adverse, `which in this context means it well m ig h t have `dissuaded a reasonable worker from making or supporting a charge of d is c rim in a tio n .''" Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (q u o tin g Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). Title VII's retaliation p r o v i s io n "prohibit[s] employer actions that are likely `to deter victims of discrimination f ro m complaining to the EEOC,' the courts, and their employers." Id. (quoting Robinson v. S h e ll Oil Co., 519 U.S. 337, 346 (1997)). "[N]ormally petty slights, minor annoyances, and s im p le lack of good manners will not create such deterrence." Id. Plus, the determination is context-specific. Id. (noting that a schedule change or a refusal to invite an employee to lu n c h are examples of annoyances or petty slights in some cases, but could be retaliation in o th e rs ). Constructive discharge, however, "negatively affects an employee's job status, and

It is unclear whether Flavor House argues that constructive discharge cannot, as a matter of law, be an adverse employment action for a retaliation claim or that Thornton just has failed to raise sufficient evidence that would amount to constructive discharge.

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th e re f o re constitutes an adverse employment action" for purposes of a retaliation claim.2 2 A k in s v. Fulton County, Ga., 420 F.3d 1293, 1301 & n.2 (11th Cir. 2005) (First Amendment c a se but citing Meeks, 15 F.3d at 1021, supporting the same point in a Title VII case) (d e c id e d prior to Burlington Northern, but not inconsistent with it) 23 . C o n stru c tiv e discharge requires proof "that working conditions were so intolerable th a t reasonable persons in [the employee's] position would have felt compelled to resign." A k in s , 420 F.3d at 1302. To survive summary judgment, the employee "must produce s u b s t an tia l evidence that conditions were intolerable." Id. The standard for constructive d is c h a rg e is "quite high." Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2 0 0 1 ); see Williams v. Russell Corp., 218 F. Supp. 2d 1283, 1299 (M.D. Ala. 2002) ( T h o m p s o n , J.) ("`[D]ifficult or unpleasant work conditions are not so intolerable as to c o m p e l a reasonable person to resign.'" (quoting Matvia v. Bald Head Island Mgmt., Inc.,

See also, e.g., Heuer v. Weil-McLain, 203 F.3d 1021, 1023 (7th Cir. 2000) (Posner, J.) (describing constructive discharge as the "classic example" of an employment action severe enough for retaliation even though it was not a "firing" or "demotion" or "other job action"); West v. Marion Merrell Dow, Inc., 54 F.3d 493, 497 (8th Cir. 1995) ("Constructive discharge, like any other discharge, is an adverse employment action that will support an action for unlawful retaliation."); Beltrami v. Special Counsel, Inc., 170 F. App'x 61 (11th Cir. 2006); Thomas v. Schafer, No. 2:05-cv-411, 2008 WL 2441040, at *9 (M.D. Ala. June 16, 2008) (Watkins, J.) ("`Constructive discharge qualifies as an adverse employment decision.'" (quoting Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 n.2 (11th Cir. 1997))).

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" Prior to Burlington Northern, courts commonly recognized a variety of adverse actions as sufficiently material to be actionable, including . . . conduct amounting to constructive discharge . . . . Based upon the standard articulated by the Supreme Court in Burlington Northern, these actions likely will continue to be deemed adverse action sufficient to support a retaliation claim . . . ." Barbara T. Lindemann & Paul Grossman, Employment Discrimination Law 1028 (4th ed. 2007). In an unpublished case after Burlington Northern, Nettles v. LSG Sky Chefs, 211 F. App'x 837 (11th Cir. 2006) (per curiam), the Eleventh Circuit discussed "constructive discharge" in a discussion on Title VII discrimination and retaliation. Id. at 839. 31

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2 5 9 F.3d 261, 272 (4th Cir. 2001)). Indeed, the standard "is higher than the standard for p ro v in g a hostile work environment." Hipp, 252 F.3d at 1231. Additionally, "[a]

c o n s tru c tiv e discharge will generally not be found if the employer is not given sufficient time to remedy the situation." Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th C ir. 1996); see also Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987) (" P a rt of an employee's obligation to be reasonable is an obligation not to assume the worst, a n d not to jump to conclusions too fast."). An example of a work environment that justifies c o n stru c tiv e discharge is one where an employee was "[s]tripped of all responsibility, given o n ly a chair and no desk, and isolated from conversations with other workers." Poole, 129 F .3 d at 553.24 T h e Eleventh Circuit has also found a material question of fact to substantiate c o n stru c tiv e discharge in Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993) (per curiam). There, th e employee's supervisor made repeated harassing statements directed at the employee and th e superior expressed an interest in a relationship with her personally. Id. at 756. He re p e a ted ly invited her out despite her expressed disinterest, made "direct completely in a p p r o p r ia te and suggestive remarks," hovered about her for hours, and continued to do so e v e n when no longer her supervisor, and once warned, sent messages to her that he missed

An example of conduct that does not justify constructive discharge is Nettles, 211 F. App'x at 839 (no constructive discharge when employer undermined employee's authority in front of customers, peers, and subordinates, excluded employee from business meeting with chairman and denied employee the opportunity to present at a meeting, denied administrative support to employee for staff trip, evaluated the employee as meeting rather than exceeding expectations, and offering a position on terms and conditions less favorable than offered to others for the same position).

24

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h e r and that no one would believe her. Id. She also faced the real possibility that he would b e c o m e her supervisor again. Id. On balance, Thornton has not created a issue of material fact with respect to her c o n s tr u c tiv e discharge claim. Her claims are sufficiently severe or pervasive to move past s u m m a ry judgment on sexual harassment, but not easily. Her situation perhaps would have b e e n more intolerable had Williams propositioned or approached her in a sexual manner, or if Flavor House had showed no interest in resolving the tension and ameliorating her circum stan ce s. Instead, Flavor House had attempted to combat the particularly inflammatory in c id e n ts in June 2006 by reassigning Thornton to a different line. There is no evidence that o n that line she would suffer a decrease in pay or job responsibilities.2 5 After the transfer, T h o rn to n did not work any meaningful time on Line 5, and away from Williams, before she re sig n e d . She argues that he was still close to her when she was on Line 5 and could wander a ro u n d the work place. (Resp. 47.) Resigning on the basis of the assumptions that he would th e re f o re continue to hurt her or worse, though, is premature. For instance, Flavor House had n o t yet had much time to design a permanent resolution even though it had started on the p ro c e ss . Indeed, after the June 14 incident, Flavor House had taken affirmative and im m e d ia te steps to quell the escalating disagreement by investigating the claim, writing up W illiam s, and separating the parties as a first step. Based on the record before the court,

Thornton only claims that the move from Line 3 to Line 5 deprived her of working on one of the new machines. (Thornton Decl. ¶ 12.)

25

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T h o r n t o n ' s evidence does not amount to constructive discharge, so her retaliation claim c a n n o t rest on that adverse employment action. N o r can her retaliation claim rest on the other adverse employment actions. The first a f f irm a t iv e alleged adverse employment action ­ verbal and written reprimands ­ is not e n o u g h for a prima facie case. Thornton presents no evidence other than the conclusory te stim o n y that she was constantly reprimanded after she complained (see Resp. 45) and gives in s u f f ic ie n t facts to show that based on those requirements, a reasonable person would have b e e n dissuaded from making a charge. Conclusory allegations based on subjective beliefs d o not suffice. For certain types of claims, a plaintiff's testimony is a key source of evidence. In this instance, Thornton is more detailed and helpful on her sexual harassment claim, for e x a m p le . But Thornton's details as to the alleged constant stream of verbal and written re p rim a n d s are so sparse and unsubstantiated (see Thornton Dep. vol. 1, 175, 275-76) that it would be unreasonable to expect Flavor House to have enough information to determine if it had a legitimate, non-retaliatory reason for its actions. A s Flavor House points out, Thornton only addresses three specific write-ups in her te stim o n y (Br. Supp. Summ. J. 18), all of which can be credibly explained. For the first one, s h e admits that it was deserved in part, but complains that no one else who had made the s a m e mistake was written up. That is not enough, however, to rebut the legitimate, nonre ta lia to ry reason for the write-up ­ that Thornton put the incorrect date on the schedule ­ a s pretextual. Thornton has not pointed to any other evidence that employees allegedly not

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w ritte n up were similarly situated, or to any other evidence of pretext. Thornton received the s e c o n d specified write-up for hollering at an employee. Thornton's argument was that it was u n d e se rv e d because she was competing with the sound of a case packer, but that argument is not enough to show that the reason for the write-up was pretextual (as opposed to wrong, u n f a ir or imprudent). "[F]ederal courts do not sit to second-guess the business judgment of e m p lo ye rs. . . . [A] plaintiff may not establish that an employer's proffered reason is p re te x tu a l merely by