Anderson et al v. Surgery Center of Cullman Inc et al

Filing 263

MEMORANDUM OPINION AND ORDER that pltfs' motion for partial summary judgment as to entity defts [doc. 138] is MOOT in part, DENIED in part, and GRANTED in part, as set out. Pltfs' motion for partial summary judgment as to Dr. Johnson [doc. 141] is MOOT in part and DENIED in part, as set out. Signed by Judge Abdul K Kallon on 3/31/17. (SMH)

FILED
2017 Mar-31 PM 03:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DANA ANDERSON, et al.,
Plaintiffs,

v.
SURGERY CENTER OF
CULLMAN, INC., et al.,
Defendants.

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Civil Action Number
2:12-cv-00598-AKK

MEMORANDUM OPINION AND ORDER
The court has for consideration plaintiffs’ partial motions for summary
judgment as to Surgery Center of Cullman, Inc., Surgery Center of Cullman,
L.L.C., Surgical Care Affiliates, L.L.C., and Cullman Outpatient Surgery, L.L.C.’s
(hereinafter, the entity defendants) and Dr. Kevin Johnson’s affirmative defenses.
Docs. 138 and 141. 1 For the reasons explained below, the motions are due to be
granted only as to the administrative prerequisite defense asserted by the entity
defendants and some aspects of the statute of limitations defense asserted by all
defendants.

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The magistrate judge did not issue a recommendation on these motions because “[t]he
availability of the affirmative defenses depends on issues the [magistrate judge] addresses in
[the] report and recommendation, which the court may or may not accept.” See doc. 249 at 67.

A. The entity defendants’ affirmative defenses
Plaintiffs seek summary judgment as to the entity defendants’ FaragherEllerth, administrative prerequisites, 2 statute of limitations, “like or related
claims,” laches/waiver/estoppel/unclean hands, and “same action regardless of
impermissible motive” affirmative defenses. See doc. 138 at 64–78.
1. Faragher-Ellerth
The Faragher-Ellerth defense allows an employer to escape vicarious
liability if it proves “(1) that the employer exercised reasonable care to prevent and
promptly correct harassing behavior and (2) that the plaintiff employee
unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer, or to avoid harm otherwise.” Faragher v.
City of Boca Raton, 524 U.S. 755, 807 (1998). According to plaintiffs, the defense
is not available here because, (1) as to the first prong — the defendants appointed
Dr. Johnson as Medical Director even though he had a “reputation for sexually
inappropriate behavior in the workplace” and had previously been sued for sexual
harassment, doc. 138 at 65; failed to train Dr. Johnson and the management team
of the Surgery Center on the sexual harassment or retaliation policy, id. at 66; and
conducted flawed investigations, id. at 68; and, (2) as to the second prong —

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SCA concedes that plaintiffs timely filed their EEOC charges and lawsuit. See doc. 112
at 5. Therefore, as to the administrative prerequisites, plaintiffs’ motion is due to be granted.
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plaintiffs contend that they acted reasonably by utilizing SCA’s procedures to
report Dr. Johnson, id. at 73.
There are factual disputes regarding both the adequacy of defendants’
preventative and remedial measures and the reasonableness of plaintiffs’ steps to
purportedly protect themselves. For example, both Anderson and Lackey resigned
before Dr. Johnson returned from his mandated leave of absence.

This fact

supports an argument that they did not give SCA’s 2011 remedial measures an
opportunity to work. Likewise, as to whether SCA exercised reasonable care to
prevent harassment, SCA has a sexual harassment policy, see doc. 140-58 at 16–
17, which it disseminates to each new employee in a Teammate Handbook,
including during the relevant period. Although “an employer’s showing that it has
a sexual harassment policy does not automatically satisfy its burden,” Frederick v.
Sprint/United Mgmt. Co., 246 F.3d 1305, 1314 (11th Cir. 2001), evidence of such a
policy helps the employer meet its burden unless the employer “entirely failed to
disseminate that policy,” Faragher, 524 U.S. at 808. See also Swindle v. Jefferson
County Comm’n, 593 F. App’x 919, 923 (11th Cir. 2014) (“[A] formal antiharassment policy is some proof that the employer exercised reasonable care to
prevent harassing behavior.”).
Moreover, after the 2010 complaints, Lynne Hammack promptly initiated an
investigation during which she interviewed various employees and arranged for
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employees to take anonymous surveys to describe the work environment. See
docs. 140-55 at 8–10; 140-6 at 2; Baldwin v. Blue Cross/Blue Shield, 480 F.3d
1287, 1304 (11th Cir. 2007) (“All that is required of an investigation is
reasonableness in all of the circumstances. . . .”). There is also evidence that
SCA’s Regional Vice President counseled Dr. Johnson, see doc. 140-55 at 9, and
the Eleventh Circuit has stated that “warnings and counseling of the harasser are
enough where the allegations are substantiated.” Baldwin, 480 F.3d at 1305 (citing
Fleming v. Boeing Co., 120 F.3d 242, 246–47 (11th Cir. 1997)). Finally, the
record contains evidence that both the 2010 and 2011 investigations had at least
some remedial effect. See docs. 140-31 at 142, 150–51. In sum, “even if the
process in which an employer arrives at a remedy in the case of alleged sexual
harassment is somehow defective, the defense is still available if the remedial
result is adequate.” Baldwin, 480 F.3d at 1305 (citing Walton v. Johnson &
Johnson Servs., 347 F.3d 1272, 1288 (11th Cir. 2003)).
For all of these reasons, plaintiffs’ motion as to the Faragher-Ellerth
defense is due to be denied.
2. Statute of Limitations
Plaintiffs contend that there is “no record evidence to support” defendants’
contention that some of plaintiffs’ claims are time-barred. Doc. 138 at 75. The
court disagrees, in part. Plaintiffs filed this lawsuit on February 21, 2012, see doc.
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1, and except for their assault and battery claims, which have a six-year limitations
period, see Ala. Code § 6-2-34(1) (1975), a two-year limitations period applies to
all of their claims. Because the record shows that at least some of Anderson’s
allegations predate 2010, see, e.g., doc. 140-31 at 91, 96 (Anderson told the
compliance hotline in January 2010 that Dr. Johnson had kissed her, pulled her
hair, written a “sex word of the week” on the PACU calendar, and choked her),
defendants are entitled to raise this affirmative defense as to at least some of
Anderson’s claims at trial.

The court agrees, however, that the statute of

limitations defense does not apply to any of Lackey’s claims, as Lackey began her
employment in June 2010. See doc. 145-2 at 14.
3. “Like or Related Claims,” Laches/Waiver/Estoppel/Unclean
Hands, and “Same Action Regardless of Impermissible
Motive”
As to the entity defendants’ remaining affirmative defense, plaintiffs offer
no specific arguments and state instead that defendants have not met their burden.
See doc. 138 at 76–78. Because “[a] party seeking summary judgment has the
initial responsibility of informing the Court of the grounds for its motion and
specifically identifying those portions of the pleadings, depositions, answers to
interrogatories, admissions on file, and any affidavits that it believes demonstrate
the absence of a genuine issue of material fact,” Miller v. Bed, Bath & Beyond,
Inc., 185 F. Supp. 2d 1253, 1257 (N.D. Ala. 2002) (citing Celotex Corp. v. Catrett,
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477 U.S. 317, 323 (1986)), and plaintiffs have not made this showing, their motion
is due to be denied as to these defenses.
B. Dr. Johnson’s affirmative defenses
Plaintiffs also seek summary judgment as to Dr. Johnson’s “fifty-six
affirmative defenses.” See doc. 141 at 60. Plaintiffs’ motion is MOOT as to any
defenses regarding the Title VII claims against Dr. Johnson because there is no
individual liability under Title VII. As to plaintiffs’ state law claims against Dr.
Johnson, plaintiffs fail to specifically address any of the affirmative defenses and
instead generally state that Dr. Johnson has not shown that the defenses are
“supported by the record evidence.” This is not sufficient, see Miller, 185 F. Supp.
2d at 1257, and their motion is due to be denied.
CONCLUSION AND ORDER
For the reasons stated above, plaintiffs’ partial motion for summary
judgment as to the entity defendants, doc. 138, is MOOT as to any claims against
SCC, L.L.C., SCC, Inc., and COPS, DENIED as to the Faragher-Ellerth, “Like or
Related Claims,” Laches/Waiver/Estoppel/Unclean Hands, and “Same Action
Regardless of Impermissible Motive” defenses, DENIED as to statute of
limitations for Anderson except as to Anderson’s assault and battery claims, and
GRANTED as to the administrative prerequisites defenses and statute of
limitations as to Lackey. Plaintiffs’ partial motion for summary judgment as to Dr.
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Johnson, doc. 141, is MOOT as to any Title VII claims, and DENIED as to any
affirmative defenses to state law claims.
DONE the 31st day of March, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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