Austin v. Mac-Lean Fogg Company

Filing 29

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 2/25/2014. (PSM)

FILED
2014 Feb-25 AM 10:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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LATARSHA C. AUSTIN,
Plaintiff,
v.
MAC-LEAN FOGG COMPANY,
Defendant.

Civil Action Number
2:12-cv-04057-AKK

MEMORANDUM OPINION
Latarsha C. Austin pursues this claim against Mac-Lean Fogg Company for
sexual harassment, retaliation, and discriminatory discharge based on race and
gender under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(Title VII), and for the torts of outrage and invasion of privacy. Doc. 1 at 6–8.
Austin contends that Mac-Lean Fogg discharged her because she rebuffed the
sexual advances of her supervisor, Paxton Young, and that although Mac-Lean
Fogg ostensibly discharged her due to poor production rates, she actually
maintained production rates superior to those of at least one coworker outside her
protected class. Id. at 5. Mac-Lean Fogg moves to dismiss Austin’s claims in their
entirety, doc. 19, and the motion is fully briefed and ripe for review, docs. 22, 26,

1

27, and 28. Based on a review of the evidence and the law, the court finds that
Austin has presented a prima facie claim of sexual harassment, and consequently
Mac-Lean Fogg is not entitled to summary judgment on that matter. However,
Austin’s Title VII retaliation claim fails because Austin did not engage in
protected activity prior to her termination, and therefore no causal link exists
between her protected activity and her termination. Similarly, Austin’s invasion of
privacy claim fails because Young’s alleged behavior does not entitle Austin to
recovery. Lastly, Austin abandoned her remaining claims by failing to respond to
Mac-Lean Fogg’s arguments concerning them. For these reasons, except for the
sexual harassment claim, Mac-Lean Fogg’s motion is due to be granted.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “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.” “Rule 56[]
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (alteration in original). The moving party bears the initial burden of
proving the absence of a genuine issue of material fact. Id. at 323. The burden then
2

shifts to the nonmoving party, who is required to “go beyond the pleadings” to
establish that there is a “genuine issue for trial.” Id. at 324 (citation and internal
quotation marks omitted). A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
competent evidence supports that party’s version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required
to resolve disputes in the non-moving party’s favor when that party’s version of
events is supported by insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.
1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing
party’s position will not suffice; there must be enough of a showing that the jury
could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th
3

Cir. 1990) (citing Anderson, 477 U.S. at 252)).
II. FACTUAL ALLEGATIONS
The following facts reflect an assessment of the record in the light most
favorable to Austin. On May 12, 2012, Austin began working as an Assembler at
Mac-Lean Fogg’s Pelham plant. Doc. 19-1 at 7. Austin reported directly to Paxton
Young. Id. at 7–8. Consistent with Mac-Lean Fogg’s agreement with the union
that represents its Assemblers, new hires must complete a sixty-day probationary
period before becoming eligible to join the collective bargaining unit. Id. at 7.
During the probationary period, supervisors evaluate probationary employees after
fifteen, thirty, and forty-five days. Id. at 8. Probationary employees who do not
meet Mac-Lean Fogg’s attendance or work performance standards are discharged
before the end of the sixty-day period. Id.
As an Assembler, Austin was responsible for assembling metal parts. Id.
Assemblers work on various types of parts, and each part takes a different amount
of time to assemble. Id. Accordingly, rather than evaluate Assemblers’
performance based on the number of parts they produce, Mac-Lean Fogg evaluates
them according to their effectivity rate. Id. at 8–9. To calculate an Assembler’s
effectivity rate, Mac-Lean Fogg divides the number of parts the Assembler

4

produces in one hour by the amount of time it takes to produce the part.1 Id. at 9.
Mac-Lean Fogg expects Assemblers to maintain an effectivity rate of at least
eighty percent upon hire, with the long-term goal of improving to one hundred
percent. Id. at 9. During Austin’s employment, Mac-Lean Fogg relied on selfprepared, handwritten reports indicating how many parts an Assembler completed,
which each assembler turned into his supervisor at the end of a shift, to calculate
effectivity rates. Doc. 26 at 3. The supervisor then inputted each assembler’s
effectivity rate into Mac-Lean Fogg’s computer system. Id. at 3–4.
Mac-Lean Fogg’s records indicate that Austin struggled to meet production
expectations. Doc. 22-7. According to those records, Austin’s effectivity rate
exceeded eighty percent during only eight of her total twenty-six shifts. Austin
disputes the accuracy of these records. See doc. 26 at 11 (Austin’s response to
Mac-Lean Fogg’s motion for summary judgment, noting that Austin “has disputed
that her scores were recorded fairly”); see also doc. 25-1 at 27, 29 (Austin’s
deposition testimony that Mac-Lean Fogg’s records of her effectivity rates differed
from her recollection of those rates).
Austin received two performance evaluations from Young during her
employment. Doc. 19-1 at 9–12. During the first, on May 30, 2012, she received
1

For example, if a part takes six minutes to assemble, an Assembler who produces ten of
the parts within one hour would have an effectivity rate of one hundred percent. Similarly, an
Assembler who only produced five of the same parts would have an effectivity rate of fifty
percent.
5

low marks in the “Industriousness” and “Quality of Work” categories, and Young
told her she needed to increase her production numbers. Id. at 10. The dispute in
this case centers primarily on alleged events that occurred during the second
evaluation on June 19, 2012. According to Austin, after Young presented her with
a poor performance review, he offered to improve her effectivity rates if she would
meet him after work for a sexual encounter. Doc. 25-1 at 32–33.When Austin
declined, Young told her she would “probably pay” for doing so. Id. at 33.2
Sometime earlier in the week, Young apparently told Austin that she would
probably lose her job if she failed to improve her effectivity rates. Id. at 32.
Two days after the second review and alleged sexual proposition, Young
and Lisa Glander, Mac-Lean Fogg’s human resources supervisor, met with Austin
and informed her of her termination for failing to meet production and work
performance standards.3 Doc. 19-1 at 12. Although Austin asked to speak privately
with Glander, when Young left the room, Austin did not inform Glander of
2

Young denies propositioning Austin. Doc. 22-11 at 7. The records associated with
Austin’s second review indicate that she again received low scores in the “Industriousness” and
“Quality of Work” categories and notes that Austin was “[s]till having trouble with the
production of parts.” Doc. 22-8 at 2.
3

Young, Glander, and Kerry Smitherman, Pelham plant superintendent, each testified
that they met on June 19, 2012, before Austin’s second performance review, and Smitherman
indicated that he planned to discharge Austin because her production rates failed to meet
expectations. Docs. 19-2 at 3–4; 22-9 at 4; 22-11 at 5–6. Young and Glander testified that they
did not discharge Austin until June 21, 2012 because Glander was out of the office until that day.
Docs. 19-2 at 4; 22-11 at 6. Young also testified that he conducted Austin’s second performance
evaluation on June 19, 2012, even though Smitherman already had decided to discharge her,
because Austin had requested the review and Glander had instructed him to do so. Id.
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Young’s offer to change her production scores in exchange for sexual favors. Id.
Instead, Austin waited until the next day to notify Mac-Lean Fogg about Young’s
harassment by first contacting Glander via telephone,4 doc. 25-1 at 38–39, and
then later that same day reporting Young’s harassment to Mac-Lean Fogg’s
corporate headquarters in Illinois, doc. 19-1 at 13, as well as to Mac-Lean Fogg’s
Global Compliance hotline, doc. 25-1 at 38–39. The following day, Austin faxed a
written account of Young’s harassment to the Pelham plant’s human resources
department. Doc. 19-1 at 13. Mac-Lean Fogg investigated Austin’s allegations, but
ultimately found them to be unsubstantiated. Id. at 14. While Mac-Lean Fogg
conducted its investigation, Austin filed a charge of discrimination with the Equal
Employment Opportunity Commission, and subsequently filed this lawsuit. Doc. 1
at 1–2.
III. ANALYSIS
Austin brings claims under Title VII for sexual harassment, retaliation, and
discriminatory discharge on the basis of race and gender, and under Alabama law
for invasion of privacy and outrage. Mac-Lean Fogg contends it is due summary
judgment on all of Austin’s claims. The court will address each claim in turn.
A. Sexual Harassment

4

Austin testified that she unsuccessfully tried to contact Glander by telephone to report
Young’s harassment on June 20, 2012, before her termination. Doc. 25-1 at 33–34.
7

To establish a prima facie case of sexual harassment under Title VII,
a plaintiff must show (1) that she belongs to a protected group; (2) that she
has been subjected to unwelcome sexual harassment; (3) that the harassment
was based on her sex; (4) that the harassment was sufficiently severe or
pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) that a basis for
holding the employer liable exists.”
Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1244 (11th Cir. 2004) (citing
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999); Johnson v.
Booker T. Washington Broad. Serv., 234 F.3d 501, 508 n. 7 (11th Cir.2000)). The
Eleventh Circuit has referred to these elements as the “Mendoza factors.” See, e.g.,
Johnson, 234 F.3d at 508 n. 7. Mac-Lean Fogg contends that Austin fails to meet
her burden with regards to the fourth and fifth Mendoza factors. Doc. 19-1 at
24–27.
There are two ways in which sexual harassment can rise to a Title VII
violation. “One way is if the employee’s refusal to submit to a supervisor’s sexual
demands results in a tangible employment action5 being taken against her.”
Hulsey, 367 F.3d at 1245. “As defined by the Supreme Court, a tangible
employment action is ‘a significant hiring, firing, failing to promote, reassignment
5

Historically, many courts “used the term ‘quid pro quo’ to describe situations where a
benefit of employment was tied to a demand for sexual favors.” Hulsey, 367 F.3d at 1245 n. 4.
However, in Burlington Industries, Inc. v. Ellerth, the Supreme Court indicated that the term
should no longer be used when determining if an employer is liable under Title VII. 524 U.S.
742, 753–54 (1998). Consequently, the Eleventh Circuit uses the phrase “‘tangible employment
action’ to refer to harassment that culminates in a discharge, demotion, or undesirable
reassignment.” Hulsey, 367 F.3d at 1245 n. 4.
8

with significantly different responsibilities, or a decision causing a significant
change in benefits.’” Id. at 1245 (quoting Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 761 (1998)). “An employer is liable under Title VII if it (even
unknowingly) permits a supervisor to take a tangible employment action against
an employee because she refused to give in to his sexual overtures.” Id. The other
way sexual harassment can “violate Title VII is if it is sufficiently severe and
pervasive to effectively result in a change . . . in the terms and conditions of
employment, even though the employee is not discharged, demoted, or reassigned.
This is hostile work environment harassment.” Id. (citing Burlington Indus., 524
U.S. at 754).
This circuit has clearly stated that district courts must evaluate Title VII
liability according to the Mendoza factors regardless of whether a plaintiff
premises that liability on a tangible employment action theory or a hostile work
environment theory. See Johnson, 234 F.3d at 508 n. 7 (stating that because the
court “[s]ee[s] no important distinction between a prima facie case under quid pro
quo as opposed to hostile environment claims, we will apply the Mendoza factors
to [the plaintiff’s] claims, irrespective of the terms ‘quid pro quo’ and ‘hostile
environment’”); see also Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197,
2000 (11th Cir. 2001) (noting that “[a]lthough the elements for a prima facie case
for these two kinds of claims formerly were analyzed under slightly varying tests,
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this court has indicated a willingness to abandon the distinction”) (citing Johnson,
234 F.3d at 508 n. 7). Nonetheless, there is a crucial difference regarding the
application of the fourth Mendoza factor, i.e. whether “the harassment was
sufficiently severe or pervasive to alter the terms and conditions of employment
and create a discriminatorily abusive working environment,” Hulsey, 367 F.3d at
1244 (citing Mendoza, 195 F.3d at 1245), depending on whether a plaintiff is
proceeding under a hostile work environment theory or a tangible employment
action theory: “[I]f a supervisor retaliates against a worker for failing to give in to
sexual advances, those advances will rise to the level of ‘severe or pervasive.’”
Johnson, 234 F.3d at 508 n. 7. Consequently, when, as here, a plaintiff alleges
liability for sexual harassment based on a tangible employment action theory,
whether she satisfies the fourth and fifth Mendoza factor collapses into one
inquiry: whether there is a basis for holding the employer liable because a
supervisor took tangible employment action against the plaintiff for failing to
comply with the supervisor’s sexual demands. Whether the supervisor’s alleged
harassment was of a frequency, degree, and nature that would qualify as ‘severe

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and pervasive’—as Mac-Lean Fogg contends Young’s does not6—is irrelevant.7
Austin has met her burden in this case. While Young, Smitherman, and
Glander each testified that Smitherman alone made the decision to discharge
Austin, see docs. 22-2 at 3–4; 22-9 at 4; 22-11 at 4, in its answer to Austin’s first
set of interrogatories, responding to the question “who was involved in the
decision to discharge [Austin]” (emphasis added), Mac-Lean Fogg stated that
“[t]he individuals involved in terminating [Austin’s] employment include Paxton
Young and Lisa Glander.” Doc. 27-2 at 6. Although in its reply brief, Mac-Lean
Fogg attempts to backpedal by stating that “Lisa Glander and Young were
‘involved in terminating [Austin’s] employment,’ because they were the
individuals who met with [Austin] on June 21, 2012 to inform [Austin] of her
termination” and that “[t]he record is clear that neither Young nor Glander had

6

The court notes that the cases Mac-Lean Fogg cites in support of its contention that
Austin’s sexual harassment claim fails because Young’s alleged harassment was not ‘severe and
pervasive’ are cases in which the plaintiff based liability on a hostile work environment theory,
not a tangible employment action theory. See Doc. 19-1 at 21–23.
7

Hulsey, 367 F.3d at 1246–49, provides a good illustration of the difference between the
application of the fourth Mendoza factor to a tangible employment action theory and its
application to a hostile work environment theory. In Hulsey, the plaintiff contended that the
defendant was liable to her based on both theories. Id. at 1245. Only when analyzing whether the
defendant was liable based on a hostile work environment theory did the court consider whether
the wrongdoer’s actions were of a frequency, degree, and nature that would qualify as ‘severe and
pervasive.’ Id. Additionally, the Eleventh Circuit has described the difference between the two
theories of liability as follows: “To prove sexual harassment in violation of Title VII, a plaintiff
may rely on one of two theories. Under the first theory, the plaintiff must prove that the
harassment culminated in a ‘tangible employment action’ against her. Under the second or
‘hostile work environment’ theory, the plaintiff must prove that she suffered ‘severe or pervasive
conduct.’” Cotton v. Cracker Barrel Old Country Store, 434 F.3d 1227, 1231 (11th Cir. 2006).
11

authority to fire [Austin] and that Smitherman made the ultimate decision,” doc.
28 at 8 (citations omitted), the court reminds Mac-Lean Fogg that “[s]tatements by
counsel in briefs are not evidence,” Skyline Corp. v. Nat’l Labor Relations Bd.,
613 F.2d 1328, 1337 (5th Cir. 1980) (emphasis added). Critically, however, MacLean Fogg’s admission in its response to Austin’s interrogatories is sufficient to
create a question for a jury to resolve regarding whether Young’s involvement
means he played an actual role in Austin’s discharge or, as Mac-Lean Fogg now
contends, his involvement consisted solely of communicating the decision to
Austin.
Moreover, even if Young was not actually a decision-maker, in this circuit,
“a ‘cat’s paw’ theory of recovery may apply when a biased actor recommends that
an adverse employment action be taken against an employee, but the biased actor
is not the ultimate decision-maker.” Williamson v. Adventist Health Sys./Sunbelt.
Inc., 372 F. App’x 936, 938 (11th Cir. 2010) (citing Stimpson v. City of
Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.1999)). Although Mac-Lean Fogg
insists that Smitherman alone decided to terminate Austin’s employment, the
record indicates that he sought out Young and Glander’s opinions. See doc. 22-9
at 4 (Smitherman’s testimony that “[s]ometime in early June 2012, [he] met with . .
. Young to discuss . . . Austin’s performance”); doc. 22-2 at 4 (Glander’s
testimony that at the alleged June 19, 2012 meeting where Smitherman announced
12

his intention to discharge Austin, he asked Glander if she agreed with his
decision). Additionally, Smitherman testified that he decided to terminate Austin’s
employment solely because of her inability to achieve effectivity rates that met
Mac-Lean Fogg’s production expectations. Doc. 22-9 at 6. This testimony is
critical because Austin contests the accuracy of Mac-Lean Fogg’s records
documenting her effectivity rates, see doc 26 at 11; doc. 25-1 at 27, 29, and seems
to argue that Young tampered with them8, see doc. 26 at 11–15. Needless to say, if
a jury believes either than Young influenced Smitherman’s decision based on
discriminatory animus or that Young tampered with Austin’s production numbers,
Mac-Lean Fogg could be liable to Austin based on a cat’s paw theory of recovery.
In the final analysis, while the record does not overflow with evidence
supporting Austin’s claim, it does contain sufficient evidence to create an issue of
material fact as to whether Young took adverse employment action against Austin
or at least influenced Smitherman’s decision in a manner that could render Mac8

Mac-Lean Fogg could not produce the handwritten reports that Austin submitted to
Young at the end of each shift and that were the basis of her effectivity ratings because they were
“discarded in accordance with [Mac-Lean Fogg’s] regular business practices.” Doc. 28 at 10.
Austin contends that Mac-Lean Fogg’s “failure to preserve [Austin’s] handwritten notes entitles
[Austin] to an inference that their contents would have undermined [Mac-Lean Fogg’s]
contention that [Austin] was not meeting expectations with regard to productivity scores.” Doc.
26 at 12. However, “[i]n this circuit, an adverse inference is drawn from a party’s failure to
preserve evidence only when the absence of that evidence is predicated on bad faith.” Bashir v.
Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (citing Vick v. Tex. Emp’t Comm’n, 514 F.2d 734,
737 (5th Cir.1975)). There is no evidence in the record that calls Mac-Lean Fogg’s claim that it
disposed of the records in accordance with its normal practices into question or that supports the
notion that it tampered with them. Consequently, the court declines to draw an adverse inference
in Austin’s favor.
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Lean Fogg liable to Austin.9 Consequently, Mac-Lean Fogg’s motion for summary
judgment on Austin’s sexual harassment claim is due to be denied.10
B. Retaliation
“To make a prima facie showing of a retaliation claim [under Title VII], a
plaintiff must demonstrate that (1) she engaged in statutorily protected activity; (2)
she suffered a materially adverse employment action; and (3) there was a causal
link between the protected activity and the subsequent materially adverse
employment action.” Brush v. Sears Holding Corp., 466 F. App’x 781, 786 (11th
Cir. 2012) (citing Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1212 (11th
Cir.2008)). A review of the record indicates that the only protected activity Austin

9

Mac-Lean Fogg argues that Young’s alleged harassment did not result in a tangible
employment action because Smitherman decided to discharge Austin before Young allegedly
propositioned her. Doc. 19-1 at 27. Therefore, it contends that Austin can only proceed on a
hostile-work-environment theory of recovery, and consequently that it is entitled to a FaragherEllerth defense. However, as explained above, Austin has presented a prima facie case of sexual
harassment based on a tangible employment action theory. Consequently, granting summary
judgment based on a Faragher-Ellerth defense would be improper. See Hulsey, 367 F.3d at 1246,
1247 (stating that the Faragher-Ellerth defense “applies only to employer liability based upon a
hostile environment theory. It has no effect upon employer liability based upon a tangible
employment action theory. . . . The Faragher-Ellerth affirmative defense is irrelevant to the
tangible employment action theory of recovery”) (citing Faragher v. City of Boca Raton, 524
U.S. 775, 808 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998)).
10

The court notes that while Mac-Lean Fogg proffers a legitimate, nondiscriminatory
reason for Austin’s termination, namely that she failed to meet its performance expectations, and
the record contains evidence supporting Mac-Lean Fogg’s contention, in this circuit, the
McDonnell Douglas-Burdine burden-shifting framework is not applicable to sexual harassment
claims: “[w]e are unwilling to read the McDonnell Douglas-Burdine framework into
non-retaliation sexual harassment cases at this point. These types of cases have evolved quite
separately from other Title VII cases, and applying a burden-shifting analysis to them would be a
departure from precedent.” Johnson, 234 F.3d at 511 (citing Henson v. City of Dundee, 682 F.2d
897, 905 n. 11 (11th Cir.1982)).
14

engaged in occurred when she reported Young’s harassment to Glander, Mac-Lean
Fogg’s corporate headquarters, and Mac-Lean Fogg’s Global compliance hotline
after her discharge.11 While Austin testified that she attempted to contact Glander
the day before her discharge, doc. 25-1 at 33–34, it is undisputed that she did not
contact Glander or any other Mac-Lean Fogg representatives successfully until the
day after her termination. See doc. 25-1 at 38–39; doc. 19-1 at 13. Consequently,
there was no causal link between Austin’s protected activity and her termination.
See Myers v. Cent. Fla. Invs., Inc., 237 F. App’x 452, 457 (11th Cir. 2007)
(finding no causal link between plaintiff’s protected actions and her discharge
because the defendant decided to discharge the plaintiff before she engaged in
protected activity). Because Austin fails to establish a prima facie case, Mac-Lean

11

Austin contends that “her refusal of Young’s advances before her termination was
protected activity.” Doc. 26 at 16. Title VII’s anti-retaliation provision prohibits employers from
retaliating against an employee who “oppose[s] any practice made an unlawful employment
practice by this subchapter, or . . . ma[kes] a charge, testifie[s], assist[s], or participate[s] in any
manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 2000e-3(a).
The two clauses of this provision are known as the “opposition clause” and the “participation
clause.” Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tenn., 555 U.S. 271, 274
(2009). While the opposition clause leaves the term “oppose” undefined, courts have generally
viewed an employee as engaging in protected opposition when she voices concern about or
resistance to violations of Title VII. See Crawford, 555 U.S. at 276 (stating that “[w]hen an
employee communicates to her employer a belief that the employer has engaged in . . . a form of
employment discrimination, that communication virtually always constitutes the employee's
opposition to the activity” (citation omitted) (internal quotation marks omitted); see also id. at
273 (describing Title VII’s anti-retaliation provision generally as “forbid[ding] retaliation by
employers against employees who report workplace race or gender discrimination”). Austin has
provided no support for her contention that by rebuffing Young, she engaged in protected
activity, and in the absence of any authority, binding or otherwise, that could serve as a basis for
such a finding, the court declines to expand the scope of the opposition clause as Austin suggests.
15

Fogg’s motion for summary judgment on her retaliation claim is due to be granted.
C. Invasion of Privacy
Austin seems to contend that by asking her to meet him after work for a
sexual encounter, Young committed the tort of invasion of privacy, for which
Mac-Lean Fogg can be held vicariously liable. Doc. 1 at 8; doc. 26 at 16. Alabama
law defines the tort of invasion of privacy as “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.” McIssac v. WZEW-FM Corp.,
495 So. 2d 649, 651 (Ala. 1986). However, the Alabama Supreme Court has noted
that “[e]ven the dire affront of inviting an unwilling woman to illicit intercourse
has been held by most courts to be no such outrage as to lead to liability” for the
tort of invasion of privacy. Id. at 152 (citing Logan v. Sears, Roebuck & Co., 466
So. 2d 121, 124 (Ala. 1985); W. Prosser, Law of Torts, 54–55 (4th ed. 1971)).
Additionally, the court notes that Alabama courts have generally required invasion
of privacy claims to allege both ongoing, persistent verbal harassment and
unwanted physical contact. See, e.g., Ex parte Atmore Cmty. Hosp., 719 So. 2d
1190, 1194 (Ala. 1998) (substantial evidence supported lower court’s finding that
defendant committed an invasion of privacy when the plaintiff presented evidence
that the defendant repeatedly touched her in a manner that was unwelcome and
with sexual overtones, “made several lewd comments[,] asked [the plaintiff] to
16

meet him outside of work for other than business purposes[,] . . . [and] looked up
[the plaintiff’s] skirt on more than one occasion”); Phillips v. Smalley Maint.
Servs., Inc., 435 So. 2d 705, 711 (Ala. 1983) (finding that the facts of the case
supported an invasion of privacy claim when the plaintiff testified that the
defendant called her into his office, locked the door, and interrogated her about
her sexual relationship with her husband, repeatedly demanded sexual favors from
her, reacted violently when she refused, “[o]n one occasion struck her across the
buttocks with his hand[, and o]n still another occasion, . . . began papering his
office window, thus obscuring the view of those in the surrounding area, in pursuit
of what he hoped would be the consummation of lurid propositions to [the
p]laintiff”); Cunningham v. Dabbs, 703 So. 2d 979, 980–81, 982 (Ala. Civ. App.
1997) (finding that a reasonable jury could conclude the defendant intruded on the
plaintiff’s privacy when the uncontested evidence showed that the defendant
“frequently rubbed [the plaintiff’s] shoulders and repeatedly made lewd and
suggestive comments to her, including suggestions that they have sex” and on one
occasion “leaned over her as if he were going to whisper something to her and
stuck his tongue in her ear”). Guided by these cases, and in the absence of any
support for Austin’s contention that a single sexual proposition can serve as the
basis for an invasion of privacy claim, the court finds that no reasonable jury could
find Young liable for the tort of invasion of privacy. Consequently, Mac-Lean
17

Fogg’s motion for summary judgment on Austin’s invasion of privacy claim is due
to be granted. See Alfa Life Ins. Corp. v. Jackson, 906 So. 2d 143, 155 (Ala. 2005)
(stating that “the dismissal of the tort claims against the agent . . . exonerated the
principal . . . from liability for those alleged torts”).
C. Discriminatory Discharge and Outrage
Although Austin’s complaint raises claims of discriminatory discharge on
the basis of race and gender and outrage, doc. 1 at 6–7, Austin failed to address
Mac-Lean Fogg’s arguments concerning those claims in her response to its motion
for summary judgment. Consequently, she has abandoned those claims and MacLean Fogg is entitled to summary judgment on them.12 See e.g., Fischer v. Fed.
Bureau of Prisons, 349 F. App’x 372, 375 n. 2 (11th Cir. 2009) (finding that the
plaintiff waived claims he did not address in his response to the defendant’s
motion for summary judgment) (citing Transamerica Leasing, Inc. v. Inst. Of
London Underwriters, 267 F.3d 1303, 1308 n. 1 (11th Cir. 2001)). Alternatively,
the claims also fail because Austin failed to establish that racial gender animus
motivated her discharge or that the alleged proposition rises to the level necessary
to sustain an outrage claim under Alabama law.

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Additionally, Austin expressly waived her racial discrimination claim during her
deposition: “Q. Are you claiming that you were discriminated in this lawsuit because of your
race, African-American? A. No. Q. It’s only because of your gender and retaliation? A. Yes.”
Doc. 25-1 at 43.
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IV. CONCLUSION
For the reasons fully explained above, Mac-Lean Fogg’s motion for
summary judgment is due to be granted in part. Austin has presented a prima facie
case of sexual harassment, and consequently Mac-Lean Fogg’s motion for
summary judgment on Austin’s sexual harassment claim is due to be denied.
However, because Austin has failed to establish a causal connection between any
protected activity and her termination, Mac-Lean Fogg’s motion for summary
judgment on Austin’s retaliation claim is due to be granted. Likewise, Austin has
failed to allege facts that are sufficient to support an invasion of privacy claim
under Alabama law, and Mac-Lean Fogg’s motion for summary judgment on that
claim also is due to be granted. Finally, Austin abandoned her discriminatory
discharge and outrage claims, so Mac-Lean Fogg’s motion to dismiss them is due
to be granted as well. The court will enter a separate order consistent with this
opinion.
Done this 25th day of Febraury, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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