Waltz v. Dunning et al

Filing 71

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 12/31/2014. (KAM, )

FILED
2014 Dec-31 PM 04:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHARON DIANNE WALTZ,
Plaintiff,
v.
JONATHAN WADE DUNNING,
an individual, and BIRMINGHAM
HEALTHCARE, INC., an Alabama
Corporation; and SYNERGY
MEDICAL SOLUTIONS, INC., an
Alabama Corporation,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No.: 2:13-cv-00517-JEO

MEMORANDUM OPINION
Defendants, Birmingham Healthcare, Inc. (“BHC”) and Synergy Medical Solutions, Inc.
(“Synergy”), have moved for summary judgment pursuant to FEDERAL RULE OF CIVIL P ROCEDURE
56 on all of the claims brought by Plaintiff, Sharon Dianne Waltz. (Doc. 50 & 54).1 The claims
arise out of the alleged improper conduct of Jonathan Dunning (“Dunning”), the Chief Executive
Officer of BHC and Synergy, during Plaintiff’s employment with both companies. The motions for
summary judgment are properly under submission, having been fully briefed and supported by
evidentiary submissions. (Docs. 51, 55-57, 59, 60-67, 69-70).2 For the reasons stated below, the
Court finds that both motions are due to be granted.

1

Citations to “Doc(s). __” are to the electronic document numbers assigned by the clerk to pleadings, motions, and
other materials in the court file, as reflected on the docket sheet.
2

The parties consented to the jurisdiction of the undersigned United States Magistrate Judge. (See Docs. 15 & 29).

I.

BACKGROUND
A.

Facts 3

Plaintiff, a professional licensed clinical psychologist, began working at BHC in 2001 as a
part of her post-doctoral fellowship. (First Deposition of Sharon Waltz4 (“1st Waltz Dep.”) at 2022). She was hired by BHC on a part-time basis on September 1, 2002, as Behavioral Science
Director. (Second Deposition of Sharon Waltz5 (“2d Waltz Dep.”) at 28). She began working full
time at BHC in October 2002. (Jonathan Dunning Deposition6 (“Dunning Dep.”) at 21). Dunning
was the Chief Executive Officer (“CEO”) at that time and Plaintiff reported directly to him.
(Dunning Dep. at 122-23; 1st Waltz Dep. at 22, 83). Plaintiff worked as a full-time employee at
BHC from October 2002 through December 31, 2004. (Dunning Dep. at 21; 2d Waltz Dep. at 28,
30, 51).

Plaintiff returned to BHC in July 2005, and worked there until she left again on October

31, 2008, to go to Synergy. (2d. Waltz Dep. at 51).
Soon after Plaintiff began working full-time at BHC, Dunning began making sexual
comments to her on a regular basis, including that “he liked her body, he wanted [her] to wear
certain jeans, [and] he liked the way [her] butt looked in those jeans.” (2d Waltz Dep. at 61-62).
In March 2003, following a late night of work at the office and a dinner, Dunning “took [Plaintiff]
back to his office and proceeded to take off [her] clothes and have sex with [her].” (Id. at 63-64).

3

At summary judgment, the court views the facts in the light most favorable to the nonmoving party. See Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). The court therefore does so here, drawing those facts from the
pleadings, depositions, and other evidentiary materials on file. Nevertheless, the court observes that what are stated
as “facts” herein for purposes of summary judgment review may not be the actual facts nor are all of the facts. See
Crawford v. Carroll, 529 F.3d 961, 964 n.1 (11th Cir. 2008).
4

Waltz’s first deposition is located at documents 53-2 and 61-2 in the record.

5

Waltz’s second deposition is located at documents 53-12 and 61-4 to 61-5 in the record.

6

Dunning’s deposition is located at documents 53-11 and 61-3 in the record.
2

She initially resisted his advances, including the removal of her clothes, but ultimately gave in. (Id.
at 66-69). She then went home. She did not tell anyone about the assault until June 2012, more than
nine years after the assault occurred, because she was afraid. (Id. at 70-71).
According to Plaintiff, initially she did not tell Dunning that she wanted to have sex with
him, but on subsequent occasions she would do so if she felt he was getting upset or angry or if she
thought he was going to hurt her. (Id. at 71). She testified that following the assault in March 2003,
Dunning told her, “You’re mine, no one can have you except for me; if I can’t have you, no one can;
you’re going to be my bitch; a king needs a queen.” (Id. at 73). She also stated that at unspecified
times Dunning choked her, pulled her hair, and held her down. (Id. at 72). According to Plaintiff,
one incident occurred in the office and one occurred in a hotel room when she refused his advances
in about late 2003. (Id. at 72-73).
Plaintiff testified that she told Dunning “several times” that she did not want to have sex with
him. (Id. at 74). According to Plaintiff, however, “[i]t was easier to have sex with him than to
[have] him get upset or physically abus[ive with her.]” (Id. at 75, 86). This “consensual”
relationship commenced in early 2004. (Id. at 76). Plaintiff and Dunning discussed a future
relationship, including having children, and referred to each other as husband and wife despite the
fact that Dunning was married. (Id. at 76, 93-94). Thereafter, they had two children together–one
in 2005 and the other in 2007. (Id. at 77; Doc. 61-6 at 2 of 5). Dunning was present for the birth
of both children. (1st Waltz Dep. at 18-19).
According to Plaintiff, she told Dunning several times in 2004 that she did not want to have
sexual relations with him any longer. (2d Waltz Dep. at 87). The relationship did not end, however,
and she did not complain to anyone at BHC. (Id. at 86). She resigned from BHC in late 2004,
telling Dunning that “she did not want to have that kind of ... work environment any longer.” (Id.
3

at 87). She returned to work a couple of weeks later. (Id. at 88).
Plaintiff ultimately terminated her employment with BHC on October 31, 2008, to become
the Development Director at Synergy, a company started by Dunning and closely tied to BHC. (Id.
at 37). Plaintiff did not tell anyone at Synergy about her relationship with Dunning because he told
her not to. (Id. at 103-04).
At some point in her relationship with Dunning, certainly by 2009, Plaintiff started wearing
a wedding band and ring given to her by Dunning. (Id. at 102-03). Plaintiff and Dunning did many
activities as a family. They spent holidays together and took family vacations. (1st Waltz Dep. at
30; 2d. Waltz Dep. at 13, 145-148; 221-34; BHC Ex. 2 (Sealed video disc of family vacations and
other events)). Plaintiff and Dunning took videos to commemorate special occasions. (Id.)
Plaintiff’s parents included Dunning in their family activities, such as birthdays and holidays.
(William Wright Deposition7 (“Wright Dep.”) at 47, 51:4-52:5; 1st Waltz Dep. at 38-39; 2d Waltz
Dep. at 177-78). Dunning helped cover the medical expenses incurred by Plaintiff’s mother when
she was stricken with cancer. (1st Waltz Dep. at 46-47). Dunning also purchased a home and
partially furnished it for Plaintiff and their children. (2d Waltz Dep. at 106-07).
Plaintiff’s physical relationship with Dunning continued until February 2012, when she
stopped going on trips and to places with him. (Id. at 81, 83, 94). Plaintiff testified that about this
time, Dunning commented, “You know I pay you to perform your wifely duties.” (Id. at 94). She
responded that she was “not doing that anymore.” (Id. at 94-95). According to Plaintiff, Dunning
replied, “You’re just acting out, you’ll come back to me, you don’t mean it.” (Id. at 95). She also
testified that Dunning became “angrier with [her]” after their physical relationship stopped. (Id. at

7

Wright’s deposition is located at document 53-15 in the electronic record.
4

91).
Plaintiff ceased working for Synergy on May 1, 2012. (Id. at 84). She did not complain to
anyone other than Dunning about the sexual harassment she experienced while at BHC or Synergy.
(Id. at 86, 225).
Dunning filed a complaint in the Family Court of Jefferson County, Alabama on April 25,
2012, seeking custodial rights concerning the two children born out of his relationship with Plaintiff.
(Doc. 53-16).
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) against Synergy on July 19, 2012. (Doc. 17-1). In her charge, Plaintiff
alleged she was subjected to sexual harassment by the “chief executive officer” of Synergy, and that
she believed that she had to maintain a sexual relationship with him to keep her job. (Id. at 2).
Plaintiff specified Synergy as the only organization that had discriminated against her. (Id.)
The EEOC investigated the charge against Synergy and informed Plaintiff on January 2,
2013, that it had been “unable to conclude that the information obtained establishes violations of the
statutes.” (Doc. 21-1 at 2). The EEOC’s Dismissal and Notice of Rights informed Plaintiff that she
had a right to sue Synergy within ninety days. (Id.) It did not name BHC, nor was a copy served
on BHC. (Id.)
B.

Procedural History

This action was initially filed in Jefferson County Circuit Court against Dunning and BHC
on February 14, 2013. (Doc. 1). The action was removed to federal court by the defendants as it
asserted federal claims under Title VII of the Civil Rights Acts of 1994. (Doc. 1 at 1). It also
included state law claims. (Id.) Following removal, Plaintiff filed an amended complaint, adding
Synergy as a defendant. (Doc. 17). The claims in the amended complaint include harassment,
5

discrimination and a “hostile work environment” in violation of Title VII (Count One); invasion of
privacy (Counts Two & Three); negligent hiring, supervision, training and retention (Count Four);
assault and battery (Counts Five (Dunning) and Seven (BHC and Synergy)8 ); and outrage (Count
Six). (Doc. 17).
Dunning has since been dismissed as a defendant on Plaintiff’s motion. (Doc. 34 & 37). The
Title VII claim (Count One) against Synergy has also been dismissed. (Doc. 45). All of Plaintiff’s
remaining claims arise from alleged sexual harassment beginning in October 2002 while she was
employed under Dunning at BHC. (Doc. 17).
Presently before the court are the motions of BHC and Synergy for summary judgment on
all of Plaintiff’s pending claims. (Doc. 50 & 54).
II.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when there is no genuine dispute as to any material fact

and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The party
seeking summary judgment must first identify grounds that show the absence of a genuine issue
(dispute) of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then
shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence that
a genuine issue (dispute) of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
257 (1986). In ruling on a motion for summary judgment, the court must draw all reasonable
inferences in the light most favorable to the non-moving party. Sims v. MVM, Inc., 704 F.3d 1327,
1330 n.2 (11th Cir. 2013); Hill v. Wal-Mart, 510 F. App’x 810, 813 (11th Cir. 2013). The court may
consider materials including depositions, documents, electronically stored information, affidavits,

8

While the caption to Count Seven alleges assault and battery claims against BHC, the text of the claim lists BHC
and Synergy. (Doc. 17 at 15-16).
6

and declarations. FED. R. CIV. P. 56(c)(1)(A ).
III.

DISCUSSION
A.

BHC’s Motion
1.

Plaintiff’s Title VII Claim Against BHC Fails as a Matter of Law
a.

Failure to name BHC

BHC initially argues that Plaintiff’s Title VII claim (Count One) fails as a matter of law
because she did not meet the statutory requirements prior to bringing suit in that she failed to lodge
an EEOC Charge against BHC and, even if she did, it was barred by the applicable limitations
period. (Doc. 55 at 11-18). Plaintiff responds that she did include BHC in her EEOC Charge and
that BHC was still directing her activities at that time. (Doc. 63 at 11-13).
A person seeking to advance a lawsuit under Title VII must first file a charge with the EEOC
alleging a Title VII violation and exhaust all remedies provided by the EEOC. Virgo v Riviera
Beach Assoc., Ltd., 30 F.3d 1350, 1358 (11th Cir. 2010). “A charge ... shall be filed within one
hundred and eighty days after the alleged unlawful employment practice occurred[.]” 42 U.S.C. §
2000e-5(e)(1); accord, Pijnenburg v. West Ga. Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir.
2001) (“It is settled law that in order to obtain judicial consideration of a [Title VII] claim, a plaintiff
must first file an administrative charge with the EEOC within 180 days after the alleged unlawful
employment practice occurred.”). This requirement guarantees “the protection of civil rights laws
to those who promptly assert their rights” and “also protects employers from the burden of
defending claims arising from employment decisions that are long past.” Delaware State Coll. v.
Ricks, 449 U.S. 250, 256-57 (1980).
Typically, a party not named in the EEOC charge may not be sued in a later action. Id.
“This naming requirement serves to notify the charged party of the allegations and allows the party
7

an opportunity to participate in conciliation and voluntarily comply with the requirements of Title
VII.... However, courts liberally construe this requirement.” Id. (citations omitted). “Where the
purposes of the Act are fulfilled, a party unnamed in the EEOC charge may be subjected to the
jurisdiction of the federal courts.” Id. at 1359 (citation omitted). In determining whether the
purposes of the Act have been fulfilled, the court must look to several factors:
(1) the similarity of interest between the named party and the unnamed party; (2)
whether the plaintiff could have ascertained the identity of the unnamed party at the
time the EEOC charge was filed; (3) whether the unnamed parties received adequate
notice of the charges; (4) whether the unnamed parties had an adequate opportunity
to participate in the reconciliation process; and (5) whether the unnamed party
actually was prejudiced by its exclusion from the EEOC proceedings.
Id. Other factors may be relevant depending on the specific facts of the case. Id. For instance,
“whether an investigation of the unnamed party ‘could have reasonably grown out of [the EEOC]
charge’” may be considered. Lewis v. Asplundh Tree Expert Co., 402 F. App’x 454, 457 (11th Cir.
2010) (quoting Hamm v. Members of Bd. of Regents, 708 F.2d 647, 650 (11th Cir. 1983)).
Here, Plaintiff’s EEOC Charge listed only Synergy, and the right-to-sue letter issued by the
EEOC also listed only Synergy as the respondent Plaintiff had a right to sue. (Doc. 17-1 at 2; doc.
53-13). In her Charge, Plaintiff asserted, in part, as follows:
I am a female. I was hired by the above employer [Synergy] in October 2009 as a
development director. I had worked for a predecessor company with the same chief
executive officer prior to coming on board with this company. I was subjected to
sexual harassment by the chief executive officer from the time I started working for
him in 2002 up until 2012. It was required that I have a sexual relationship with the
chief executive officer if I wanted to keep my job. On May 1, 2012, I could no
longer tolerate the arrangement and was constructively discharged.
(Doc. 17-1 at 2). Plaintiff also stated in response to the question “What happened to you that you
believe was discriminatory?” by stating that the sexual harassment “[b]egan when [Dunning] was
CEO of another organization, BHC” and continued at “Synergy beginning 10/2009.” (Id. at 5).

8

Plaintiff argues that because BHC and Synergy are functionally identical companies with actual
notice of the charge, she has met the statutory requirements. (Doc. 63 at 13-15).
Plaintiff further argues that the statutory requirements have been met because of the
following: (1) Dunning was the CEO at both corporations, (2) he formed Synergy to take money
from BHC, (3) Synergy immediately contracted with BHC for business, (4) Dunning could not
remember who the BHC board members were, (5) Dunning was the only board member at Synergy,
(6) after Dunning formed Synergy, he purchased BHC’s building and leased it back to BHC through
another entity he controlled, and (7) he paid vendors on behalf of BHC in the amount of $1.86
million. (Doc. 63 at 14-15). BHC counters that Synergy and BHC are distinct corporations. (Doc.
65 at 7).
Applying the enumerated considerations, the court finds that Plaintiff’s argument misses the
mark. First, the similarity of interest between the named party and the unnamed party does not
legally exist. Dunning operated Synergy and BHC during different periods of time. BHC is a nonprofit organization while Synergy is a for-profit organization. (Dunning Dep. at 23). BHC provides
medical care and substance abuse and mental health treatment, while Synergy “provides billing, real
estate, consulting, and management services to healthcare organizations.” (Id. at 21). The interplay
and relationship between the two companies does not demonstrate that they had shared interests so
as to justify a conclusion that Plaintiff’s failure to name BHC is not fatal.
Second, regarding whether Plaintiff could have ascertained the identity of the unnamed party
at the time her EEOC charge was filed, the record is clear that Plaintiff knew about BHC. She
worked there for a number of years. She simply did not advance her charge against BHC.
Third, concerning whether the unnamed party received adequate notice of the charges, the
record fails to suggest that BHC knew of the charge or that Plaintiff was asserting a claim against
9

it. This factor “weighs in favor of inclusion of an unnamed party if the party’s identity or
participation in the alleged discrimination is or is likely to be uncovered during the EEOC’s
investigation.” In this case, while it is clear that Dunning, the former CEO of BHC, was aware of
Plaintiff’s EEOC charge, nothing indicates that the officers or directors of BHC at the pertinent time
(July 2012) knew of the charge. Additionally, in view of the lapse of time since Dunning was
employed at BHC, it was not reasonable to assume BHC would be deemed a part of the claim
against Synergy.
Fourth, concerning whether the unnamed party had adequate opportunity to participate in
the reconciliation process, the record fails to demonstrate that BHC had any opportunity to
participate. Again, while Dunning was on notice of the charge and able to participate, there is no
evidence that BHC’s officers, directors or counsel had the opportunity to participate on behalf of
BHC.
Lastly, regarding whether the unnamed party actually was prejudiced by its exclusion from
the EEOC proceedings, the record is silent. In view of the fact that BHC was not a participant in
the process, it is only reasonable to assume that it was prejudiced by the exclusion as it was
precluded from advancing any defenses to the present allegations. The court further notes that the
EEOC investigation does not appear to have addressed Plaintiff’s claims to the extent she now
claims they relate back to her time at BHC. That likely is because BHC was not named in her
charge and the conduct was well outside the limitations period for advancing such a claim.
Premised on the foregoing, the court finds that P laintiff is precluded from advancing her
Title VII claim against BHC. Allowing plaintiff to pursue a dilatory claim against BHC would not
advance the purposes of Title VII or the EEOC. See Lewis v. Asplundh Tree Expert Company, 402
F. App’x 454, 457 (11th Cir. 2010) (stating that to “[p]ermit Lewis to sue the City despite his failure
10

to name it as a party in his EEOC charge would not further the purposes of Title VII”). The claim,
therefore, is due to be dismissed.
b.

Statute of limitations

The Title VII claim against BHC also is due to be dismissed because Plaintiff’s EEOC
Charge was filed well beyond the statute of limitations.
....“[A] charge... shall be filed within one hundred and eighty days after the
alleged unlawful employment practice occurred[.]” 42 U.S.C. § 2000e-5(e)(1).
Accord, Pijnenburg v. West Ga. Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir.),
reh’g denied, 273 F.3d 1117 (11th Cir. 2001) (“It is settled law that in order to obtain
judicial consideration of a [Title VII] claim, a plaintiff must first file an
administrative charge with the EEOC within 180 days after the alleged unlawful
employment practice occurred.”). This requirement guarantees “the protection of
civil rights laws to those who promptly assert their rights” and “also protects
employers from the burden of defending claims arising from employment decisions
that are long past.” Delaware State Coll. v. Ricks, 449 U.S. 250, 256-57, 101 S. Ct.
498, 66 L. Ed. 2d 431 (1980).
The United States Supreme Court has explained that “strict adherence” to this
procedural requirement “is the best guarantee of evenhanded administration of the
law.” Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S. Ct. 2486, 65 L. Ed. 2d 532
(1980). By choosing this relatively short deadline, “Congress clearly intended to
encourage the prompt processing of all charges of employment discrimination.” Id.
Indeed, this procedural rule, is not a mere technicality, but an integral part of
Congress’ statutory scheme that should not “be disregarded by courts out of a vague
sympathy for particular litigants.” Baldwin County Welcome Ctr. v. Brown, 466 U.S.
147, 152, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1994). Thus, if a plaintiff fails to file
an EEOC charge before the 180-day limitations period, the plaintiff’s subsequent
lawsuit is barred and must be dismissed for failure to exhaust administrative
remedies. See, e.g., Brewer v. Alabama, 111 F. Supp. 2d 1197, 1204 (M.D. Ala.
2000).
Thomas v. Alabama Council on Human Relations, Inc., 248 F. Supp. 2d 1105, 1114-15 (M.D. Ala.
2003).
Plaintiff alleges the sexual harassment began in October 2002 during her employment with
BHC. According to her allegations, the harassment included Dunning forcing her to have sex with
him at his office in April 2003. Dunning left BHC in 2008 to run Synergy. (Dunning Dep. at 2211

23). Plaintiff ended her employment with BHC in October 2008 when she went to Synergy. Her
Charge of Discrimination was not filed until July 19, 2012, which was over three years after
Dunning left BHC to go to Synergy and about thirty-three months after Plaintiff left BHC. This
delay necessarily precludes her Title VII claim against BHC.9
2.

State Law Claims

Plaintiff asserts state law claims of invasion of privacy (Counts Three),10 assault and battery
(Count Seven), and negligent hiring, training, supervision and retention (Count Four) against BHC.11
(Doc. 17). BHC argues that these claims are precluded because they were not timely filed. (Doc.
56 at 20). In support of this assertion, it contends that any assault and battery (“purported rape”)
occurred in April 2003 and that the sexual relationship became consensual in early 2004. (Id. at 2223). Thus, BHC concludes that the applicable statute of limitations ran in early 2006, almost seven
years before the lawsuit was filed. (Id.) Plaintiff counters that the suit was timely filed because she
“was still under the direction and supervision of [BHC].” (Doc. 63 at 17).
It is undisputed that the applicable statute of limitations for these claims is two years. ALA.
CODE (1975) § 6-2-38. Therefore, Plaintiff had to advance her claims against BHC by no later than
October 2010, two years after she left BHC. She did not. Plaintiff’s attempt at tolling is wholly
insufficient under the circumstances. She has cited no authority, and the court is unaware of any,
that would allow her to advance her claims against BHC at this late juncture. Accordingly, BHC’s

9

In view of the court’s determination of BHC’s challenges to Plaintiff’s Title VII claim, it pretermits any discussion
concerning the merits of the underlying hostile environment claim. (Doc. 55 at 16-20).
10

Count Two is an invasion of privacy claim against Dunning. It was previously dismissed on Plaintiff’s motion.
(Doc. 34 & 37).
11

Count Five is an assault and battery claim against Dunning. Count Six is an outrage claim against Dunning. Both
were previously dismissed on Plaintiff’s motion. (Doc. 34 & 37).
12

motion for summary judgment is due to be granted as to Plaintiff’s state law claims against it.12
B.

Synergy’s Motion

P laintiff’s remaining claims against Synergy include invasion of privacy (Count Three),
assault and battery (Count Seven) and negligent hiring, training, supervision and retention (Count
Four). Synergy asserts that summary judgment is due to be granted because Plaintiff’s sexual
relationship with Dunning was consensual and because the claims are barred by the statute of
limitations. (Doc. 51 at 13). Synergy also asserts that there is no basis for holding it vicariously
liable for Dunning’s acts, as the acts were outside the line and scope of his duties with Synergy.
(Id.) Plaintiff retorts that her relationship with Dunning was not consensual, but a result of his
threatening behavior, and that the claims are not barred by the statue of limitations. (Doc. 60 at 4-5).
She also asserts that “Synergy is obviously vicariously and directly liable for the tortious conduct
of Dunning because Dunning is Synergy.” (Id. at 5).
1.

Invasion of Privacy and Assault and Battery Claims
a.

The Substantive Claims

To succeed on her invasion of privacy claim premised on sexual harassment, Plaintiff must
show “(1) that the matters intruded into are of a private nature; and (2) that the intrusion would be
so offensive or objectionable that a reasonable person subjected to it would experience outrage,
mental suffering, shame, or humiliation.”13 Ex parte Atmore Cmty. Hosp., 719 So. 2d 1190, 1194
(Ala. 1998) (citing Busby v. Truswal Sys. Corp., 551 So. 2d 322, 323 (Ala.1989)); see also Godsey

12

In view of the court’s determination of BHC’s challenges to Plaintiff’s state law claims, it pretermits any further
discussion concerning the merits of each substantive claim. (Doc. 55 at 21-30).
13

“It is well settled that Alabama does not recognize an independent cause of action for sexual harassment. Instead,
claims of sexual harassment are maintained under common-law tort theories such as assault and battery, invasion of
privacy, negligent training and supervision, and outrage.” Ex parte Carlisle, 26 So. 3d 1202, 1204 n.1 (Ala. 2009)
(quoting Machen v. Childersburg Bancorporation, Inc., 761 So. 2d 981, 983 n.1 (Ala. 1999)).
13

v. City of Huntsville, Ala., 2014 WL 6685408 *13 (N.D. Ala. 2014).
The Alabama Supreme Court has defined assault as
.... an intentional, unlawful, offer to touch the person of another in a rude or angry
manner under such circumstances as to create in the mind of the party alleging the
assault a well-founded fear of an imminent battery, coupled with the apparent present
ability to effectuate the attempt, if not prevented. Western Union Telegraph Co. v.
Hill, 25 Ala. App. 540, 542, 150 So. 709, 710 [cert. denied, 227 Ala. 469, 150 So.
711] (1933).
Jones v. O’Reilly Automotive, Inc., 2012 WL 5877357 *9 (N.D. Ala. 2012) (citing Allen v. Walker,
569 So. 2d 350, 351 (Ala. 1990)). Therefore, to prove assault, Plaintiff must establish: (1) that
Dunning touched her; (2) that Dunning intended to touch her; and (3) that the touching was
conducted in a harmful or offensive manner. See Evans v. Mobile Infirmary Med. Center, 2005 WL
1840235 * 1, *6-7 (S.D. Ala. 2005) (quoting Harper v. Winston County, 892 So. 2d 346, 353
(Ala.2004); see also Atmore, 719 So. 2d at 1193. “A successful assault becomes a battery.”
Surrency v. Harbison, 489 So. 2d 1097, 1104 (Ala.1986). The “Alabama Supreme Court [has] noted
that, in order to establish that the defendant committed a battery, there must be substantial evidence
that the alleged touching occurred with sexual overtones and was unwelcome.” Evans, 2005 WL
1840235 at *6. “The Alabama Supreme Court has also held that the ‘manner or spirit’ in which the
touching occurs is critical as to whether the tort of assault exists.” Id. at *7 (citing Harper v.
Winston County, 892 So.2d 346, 353 (Ala. 2004)). To qualify as assault and battery, the touching
must be done “in an angry, revengeful, rude, insolent, or violent manner.” Id.
Synergy asserts that the complained-of conduct cannot constitute a basis for relief because
no reasonable jury could find that this conduct was “unwelcome.” While this court normally would
be inclined to let the jury decide for itself whether the conduct was “unwelcome,” rather than
making that determination as a matter of law, this case is exceptional.

14

While Dunning’s conduct was “unwelcome” at the outset and possibly for some time
thereafter, the facts, even when construed most favorably to Plaintiff, demonstrate that the
relationship later became consensual and that it had been that way for many years prior to February
14, 2013, the date Plaintiff filed her complaint. The uncontested facts supporting this conclusion
include the following. First, P laintiff and Dunning had two children together, the first in 2005 and
the second in 2007. This hardly suggests that Plaintiff was in an “unwelcome” relationship with
Dunning. Second, Plaintiff never complained to anyone during her employment with BHC or
Synergy. The failure to complain about sexual harassment is very relevant in determining whether
the conduct was “unwelcome.” Paraohoa v. Bankers’ Club, Inc., 225 F. Supp. 2d 1353, 1359 (S.D.
Fla. 2002). In this instance, Plaintiff worked at BHC for approximately six years and never
complained to anyone. After she went to Synergy and the situation persisted, she still did not
complain. Third, Plaintiff terminated her employment with BHC in 2004, but returned to the
company just a couple of weeks later. Additionally, she chose to follow Dunning to Synergy in
2008. Fourth, Plaintiff wore a wedding band and a ring provided by Dunning for at least three years.
Fifth, the numerous text messages from Plaintiff to Dunning reflect a consensual relationship. The
record is replete with messages in which she expresses affection towards Dunning, arranges
meetings with him and their children, and discusses the events of a typical day. Sixth, the record
consists of numerous videos showing the consensual nature of their relationship. These include
Plaintiff, Dunning, and their children on vacation at the beach, at a pool, at the zoo, and at Disney
World, and Plaintiff and Dunning at dinner, at a birthday party, and at a school awards program.
Seventh, the evidence includes numerous cards expressing affection and love between Plaintiff and
Dunning. Eighth, Plaintiff resided in a home provided and partially furnished by Dunning. Ninth,
P laintiff provided Dunning with expensive gifts, including a $7,000 diamond bezel watch. Tenth,
15

Dunning spent time with Plaintiff’s family, and Plaintiff spent time with his family. Eleventh,
Plaintiff filed her EEOC Charge and this action only after Dunning brought his custody suit.
While no single piece of evidence, standing on its own, conclusively establishes that Plaintiff
and Dunning were in a consensual relationship, when all of the evidence is considered together it
is clear that the relationship had become consensual more than two years before Plaintiff filed suit.
Therefore, the court finds that Plaintiff’s claims for assault and battery and invasion of privacy fail
as a matter of law.
In reaching this conclusion the court has not ignored Plaintiff’s assertion that her sexual
relationship with Dunning was simply a means to keep him from getting upset or abusive with her.
While such a point has considerable sway, it cannot support the present tort claims when the
relationship continued for ten years and the record is replete with so much evidence indicating
otherwise.
b.

Synergy’s Vicarious Liability

Assuming for the sake of the present motion that Plaintiff has articulated a factual basis for
each of her tort claims, the court finds that she has failed to demonstrate that Synergy is vicariously
liable for Dunning’s conduct. With regard to the invasion of privacy and assault and battery claims,
the court notes that since they are intentional torts, Synergy may be liable for the same only if
Plaintiff demonstrates that “(1) [Dunning’s] acts [were] committed in furtherance of the business
of the employer; (2) [Dunning’s] acts [were] within the line and scope of his employment; or (3)
[Synergy] participated in, authorized, or ratified the tortious acts.” Andazola v. Logan’s Roadhouse
Inc., 871 F. Supp. 2d 1186, 1223 (N.D. Ala. 2012) (quoting Ex parte Atmore Cmty. Hosp., 719 So.
2d 1190, 1194 (Ala. 1998) (alterations supplied) (citing Potts v. BE&K Constr. Co., 604 So. 2d 398,
400 (Ala.1992)). “The acts of an employee are committed in furtherance of the business of his
16

employer when the employer derives a benefit from the acts of the employee, or when the acts of
the employee serve a purpose of the employer.” Andazola, 871 F. Supp. 2d at 1224. “The acts of
an employee are not committed in furtherance of the business of his employer, however, when the
‘alleged conduct was aimed solely at satisfying [the employee’s] own ... desires.’” Id. (quoting
Atmore, 719 So. 2d at 1194) (bracketed alteration supplied).
In East Alabama Behavior Medicine, P.C. v. Chancey, 883 So. 2d 162 (Ala. 2003), the court
held, in accordance with Alabama law, that “sexual misconduct by an employee is purely personal
and outside the line and scope of his employment.” Id. at 169 (citing Joyner v. AAA Cooper Transp.,
477 So. 2d 364, 365 (Ala. 1985) (holding that a manager’s attempt to force sexual acts of other
employees was not in furtherance of the company’s business)). Finally, “ ‘[a]n employer ratifies
conduct if: (1) the employer has actual knowledge of the tortious conduct; (2) based on this
knowledge, the employer knew the conduct constituted a tort; and (3) the employer failed to take
adequate steps to remedy the situation.’ ” Andazola, 871 F. Supp. 2d at 1224 (quoting Atmore, 719
So. 2d at 1195).
Here, Plaintiff’s assault and battery and invasion of privacy claims against Synergy fail for
a number reasons. First, Dunning’s conduct clearly was outside the scope of his employment and
arose out of purely personal reasons, thus Synergy cannot be held vicariously liable. Second,
Plaintiff voluntarily followed Dunning to Synergy in 2008.

As discussed previously, the

relationship between Plaintiff and Dunning must be deemed consensual by this time. Third, Plaintiff
admits that did she not report the harassment to anyone during the course of her employment at
Synergy. (2d Waltz Dep. at 228). Absent any report of the harassment, knowledge of the offending
conduct cannot be imputed to Synergy and Synergy cannot be held liable for failing to take steps
to rectify it. Doe v. Western Restaurants Corp., 674 So. 2d 561, 563 (Ala. 1995). Additionally,
17

ratification requires full knowledge of all material facts. Chauncey, 883 So. 2d at 170.
To the extent Plaintiff alleges that Synergy should still be held vicariously liable because the
alleged tortious acts were committed by Dunning as Synergy’s Chief Executive Officer, the court
is not impressed. While Plaintiff is factually correct that Dunning was the CEO, that is not enough
to impute actual knowledge on Synergy. She still had a duty to report the harassment. Synergy’s
Discrimination Policy specifically required that any incident of discrimination or harassment
involving the CEO was to be reported to Synergy’s legal counsel. (Doc. 53-13 at 25 of 42).
Plaintiff argues that to require her to complain to Synergy’s legal counsel, Kenneth Dowdy, “is
comical at best” because he is not only Synergy’s legal counsel, but Dunning’s personal lawyer as
well. (Doc. 60 at 15). Accordingly, she concludes that Dowdy “would not have taken any action.”
(Id.) This conclusory assertion, however, is not supported by any evidence and is insufficient to
excuse her failure to follow Synergy’s harassment policy. Because Plaintiff failed to report the
harassment, her invasion of privacy and assault and battery claims against Synergy are due to be
dismissed.
2.

Negligent Hiring, Training, Supervision and Retention Claim

With regard to Plaintiff’s negligent hiring, training, supervision and retention claim against
Synergy, liability on the part of an employer such as Synergy (the “master”) occurs when
notice or knowledge, either actual or presumed, of [a servant’s] unfitness has been
brought to him. Liability depends upon its being established by affirmative proof
that such incompetency was actually known by the master or that, had he exercised
due and proper diligence, he would have learned that which would charge him in the
law with such knowledge. It is incumbent on the party charging negligence to show
it by proper evidence. This may be done by showing specific acts of incompetency
and bringing them home to the knowledge of the master, or by showing them to be
of such nature, character, and frequency that the master, in the exercise of due care
must have had them brought to his notice. While such specific acts of alleged
incompetency cannot be shown to prove that the servant was negligent in doing or
omitting to do the act complained of, it is proper, when repeated acts of carelessness
18

and incompetency of a certain character are shown on the part of the servant to leave
it to the jury whether they would have come to his knowledge, had he exercised
ordinary care.
Andazola, 871 F. Supp. 2d at 1224-25 (citing Big B, Inc. v. Cottingham, 634 So. 2d 999 (Ala. 1993)
(quoting Thompson v.

Havard, 285 Ala. 718, 235 So. 2d 853, 858 (1970)) (alteration supplied).

Thus, the threshold question is whether Synergy had notice of Dunning’s offending conduct and
failed to take action. Premised on the foregoing discussion, the court again finds that there is no
basis for it to find that anyone at Synergy (other than Dunning himself) had the requisite knowledge.
Moreover, Plaintiff testified that the offending conduct was ongoing and that her consent to the
conduct was based on a fear of reprisal from Dunning. This makes no sense for the reasons
previously discussed.
The next question is whether Synergy could be liable on this claim because Dunning was
both the offending party and Synergy’s CEO and thus could ratify his own wrongful conduct. In
the present circumstances, the undersigned finds that he could not. Dunning’s position as Synergy’s
CEO, without more, is insufficient to demonstrate ratification. See Missouri Public Entity Risk Mgt.
Fund v. Investors Ins. Co., 338 F. Supp. 2d 1046, 1053 (W.D. Mo. 2004) (“Job title alone is not
enough to demonstrate that ratification has occurred or was authorized.”). Synergy is not liable for
the conduct of Dunning for the reasons discussed previously.
IV.

CONCLUSION
BHC’s motion for summary judgment (doc. 54) and Synergy’s motion for summary

judgment (doc. 50) are both due to be granted as to all of Plaintiff’s claims. An appropriate order
will be entered contemporaneously herewith.

19

DONE, this 31st day of December, 2014.
___________________________
J OHN E. OTT
Chief United States Magistrate Judge

20