Barlow v. Piggly Wiggly Alabama Distributing Co Inc et al
MEMORANDUM OPINION AND ORDER For the reasons stated within, defendants' motion for partial summary judgment (Doc. 19) is DENIED. Status Conference set for October 27, 2015 at 10:30 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge William M Acker Jr. Louia Moseley shall be present in person. Signed by Judge William M Acker, Jr on 10/2/15. (SAC )
2015 Oct-02 PM 04:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EMILY K. BARLOW,
PIGGLY WIGGLY ALABAMA
DISTRIBUTING CO., INC., et
CIVIL ACTION NO.
MEMORANDUM OPINION AND ORDER
Before the court is the motion (Doc. 19) of defendants Piggly
Wiggly Alabama Distributing Co., Inc. (“Piggly Wiggly”), and Louia
Moseley (“Moseley”) for partial summary judgment. For the reasons
stated below, the motion will be denied.
Plaintiff Emily K. Barlow (“Barlow”) is a current employee of
Piggly Wiggly in Bessemer, Alabama, and has worked for the company
since 2005. (Docs. 21-1 at 10:7-8, 11:19-23, 21-2 at 8:8-10). She
performs clerical work in the retailing department. (Doc. 21-1 at
11:8-16). Moseley worked for Piggly Wiggly from 1965 to 2013. (Doc.
21-2 at 8:4-5, 34:4-6). At all times pertinent to this suit he was
the Senior Vice President of Management of Information Systems.
(Doc. 21-2 at 10:18-19). He was one of three senior vice presidents
The facts are presented in the light most favorable to
Barlow, the non-movant. Skrtich v. Thornton, 280 F.3d 1295, 1299
(11th Cir. 2002).
at Piggly Wiggly, and he was considered to be a corporate officer,
reporting directly to Piggly Wiggly’s president. (Docs. 21-2 at
10:22-11:15, 21-3 at 8:7-11).
Piggly Wiggly employs about 600 people. (Doc. 21-2 at 13:6-7).
Only about fifteen of those employees reported directly to Moseley,
but his work overseeing data processing and IT required him to
interact with most other departments. (Doc. 21-2 at 12:12-14,
13:13-22). Moseley did not directly supervise Barlow, but Barlow
reported to and interacted with Moseley regularly, on an almost
daily basis. (Doc. 21-1 at 16:16-17:3). Before the incidents in
question, the two were friends, willing to talk about personal
issues. (Doc. 21-1 at 46:15-47:6).
Beginning in March 2010, during Moseley’s visits to Barlow’s
office, he began making comments about how pretty her eyes were,
and he would blow her kisses and look down at her breasts. He did
this several times a week. (Doc. 21-1 at 15:3-7, 17:21-18:21).
forehead, and immediately walked out. (Doc. 21-1 at 24:14-18). This
caused Barlow to cry, and she was consoled by a coworker. (Doc. 211 at 43:2-11). After she changed offices, Moseley frequently
complained to her that he could not see her as often because of a
nearby nosy coworker. (Doc. 21-1 at 17:20-18:1). This coworker
claims that Moseley also sexually harassed her in the past. (Doc.
21-1 at 44:2-6). As a result of these incidents, Barlow’s coworkers
began to warn her when Moseley was coming so she could make sure
she was unavailable. (Doc. 21-1 at 39:5-14).
Piggly Wiggly had a sexual harassment policy and regularly
distributed it to its employees. (Doc. 21-1 at 34:20-35:1). If an
employee wished to complain of harassment, she was instructed to
direct her complaint to any of Piggly Wiggly’s vice presidents,
including Moseley, or to the Director of Human Resources. (Doc. 211 at 22). In fact, Moseley was listed on a prominent poster as a
harassment contact. (Doc. 21-3 at 21:12-22). While Barlow was aware
of the policy, she did not report the prior incidents as harassment
because Moseley often said that as long as he had a job, she had a
job, and she perceived this as a threat. (Doc. 21-1 at 19:13-17).
On September 20, 2012, two days before Barlow’s wedding,
Moseley walked into Barlow’s office and shut the door behind him.
(Doc. 21-1 at 20:2-7). Moseley admits that he shut the door because
he knew what he was about to do was wrong and did not want others
to see it. (Doc. 21-2 at 27:18-28:3). He walked over to Barlow and
said that he wanted to kiss the bride. (Doc. 21-2 at 20:1-4).
Moseley pressed against her and attempted to pull her jaw upward
toward him, so Barlow put her hands over her head to protect her
face. (Doc. 21-1 at 20:12-13, 21:10-14). She resisted for about as
long as she could. He eventually stopped and walked out. (Doc. 21-1
at 20:14-15). As he was leaving, he repeated that he was just going
to give the bride a kiss. (Doc. 21-1 at 20:15-17).
Barlow wept in her office, then decided to report Moseley’s
actions. (Doc. 21-1 at 22:8-13). She met with David Bullard (the
president of Piggly Wiggly), her supervisor, and a human resources
representative and relayed the encounter. (Doc. 21-1 at 23:7-14).
Bullard told her that Moseley’s conduct would not be tolerated and
would be taken care of. (Doc. 21-1 at 26:4-6). Bullard then met
with Moseley, reprimanded him verbally, and instructed him to avoid
all contact with Barlow. (Doc. 21-3 at 13:9-17). Bullard decided
not to terminate Moseley because he was scheduled to retire in six
months and had no prior issues, but Bullard told him that he would
be terminated if any other incidents occurred. (Doc. 21-3 at 13:1714:7). Moseley largely complied with Bullard’s instructions until
he retired in April 2013. (Doc. 21-1 at 30:16-32:16). Moseley now
admits that his conduct violated Piggly Wiggly’s sexual harassment
policy. (Doc. 21-2 at 39:19-22).
Barlow filed a charge of discrimination with the EEOC on March
4, 2013, and received her right-to-sue letter on February 24, 2014.
(Docs. 1-1, 1-2). She timely filed this action on May 23, 2014,
alleging a Title VII hostile work environment claim against Piggly
Wiggly and state-law claims of assault and battery, outrage, and
invasion of privacy against both defendants. (Doc. 1). Defendants
filed a motion for partial summary judgment, seeking dismissal of
all claims against Piggly Wiggly and of the outrage claim against
Moseley. Moseley does not seek dismissal of the assault and battery
or invasion of privacy claim.
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must
“examine the evidence in the light most favorable to the non-moving
party,” drawing all inferences in favor of such party. Earl v.
Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). “[A] ‘judge’s
function’ at summary judgment is not ‘to weigh the evidence and
determine the truth of the matter but to determine whether there is
a genuine issue for trial.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam) (quoting Anderson v Liberty Lobby, Inc., 477
U.S. 242, 249 (1986)).
A. Sexually Hostile Work Environment
because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a).
The Supreme Court has found this prohibition to encompass certain
sexual harassment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64
(1986). “There are two types of sexual harassment cases: (1) quid
pro quo, which are ‘based on threats which are carried out’ or
‘bothersome attentions or sexual remarks that are sufficiently
severe or pervasive to create a hostile work environment.’” Gupta
v. Fla. Bd. of Regents, 212 F.3d 571, 582 (11th Cir. 2000) (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998)),
abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53 (2006). In this action, Barlow only advances a
hostile environment theory.
To prove a hostile work environment claim, Barlow must show:
(1) that he or she belongs to a protected group; (2) that
the employee has been subject to unwelcome sexual
harassment, such as sexual advances, requests for sexual
favors, and other conduct of a sexual nature; (3) that
the harassment must have been based on the sex of the
employee; (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) a basis for holding the employer
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th
Cir. 2010) (quoting Mendoza v. Borden, 195 F.3d 1238, 1245 (11th
Cir. 1999) (en banc)). Piggly Wiggly only contests Barlow’s ability
to show the final two prongs.
1. Severity or Pervasiveness
‘sufficiently severe or pervasive to alter the conditions of
employment and create an abusive work environment’—is the element
that tests the mettle of most sexual harassment claims.” Gupta, 212
F.3d at 583. In order to prevent Title VII from inappropriately
becoming a “general civility code,” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998), the Eleventh Circuit has
required plaintiffs to establish, even at summary judgment, “a
minimum level of severity or pervasiveness necessary for harassing
conduct to constitute discrimination in violation of Title VII,”
Mendoza, 195 F.3d at 1246. Courts should use motions for summary
judgment to “police the baseline for hostile environment claims,”
id. at 1244 (quoting Indest v. Freeman Decorating, Inc., 164 F.3d
258, 264 n.8 (5th Cir. 1999)), but where exactly that baseline lies
is not always obvious.
“Harassment is severe or pervasive for Title VII purposes only
if it is both subjectively and objectively severe and pervasive.”
Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501,
satisfied at the summary judgment stage, as it is here. See Gupta,
212 F.3d at 583; Johnson, 234 F.3d at 509. When evaluating the
objective component, the Supreme Court has provided four nonexhaustive factors to consider: “(1) the frequency of the conduct;
(2) the severity of the conduct; (3) whether the conduct is
utterance; and (4) whether the conduct unreasonably interferes with
the employee's job performance.” Mendoza, 195 F.3d at 1246. “The
courts should examine the conduct in context, not as isolated acts,
and determine under the totality of the circumstances whether the
harassing conduct is sufficiently severe or pervasive to alter the
terms or conditions of the plaintiff's employment and create a
hostile or abusive working environment.” Id.
Given the severity of the September 20 incident and the
pervasive nature of Moseley’s other comments and visits, the court
cannot find as a matter of law that Moseley’s conduct was not
severe or pervasive. Simply put, a jury should decide whether
Moseley’s conduct, which he admits was wrong and a violation of
Piggly Wiggly’s sexual harassment policy, was sufficiently severe
or pervasive as to alter the terms and conditions of Barlow’s work
Arguing against this result, Piggly Wiggly primarily cites two
Eleventh Circuit cases, Mendoza and Gupta, in which the court held
that the harassment alleged was not severe or pervasive. Neither of
those plaintiffs, however, alleged the forceful conduct present
here. In Mendoza, the defendant allegedly followed the plaintiff
around and stared at her, three times made sniffing noises in the
direction of her crotch, rubbed his hip against hers while passing
in a hallway, and made an arguably sexually laden comment when she
confronted him about his conduct. 195 F.3d at 1242-43. The court
found no actionable sexual harassment, but that case is quite
different from this case. While the Mendoza court focused primarily
on the ambiguous motive present in the defendant’s touching and
following of the plaintiff, Moseley’s forceful attempted kiss of
Barlow displays none of those ambiguities - Moseley admits that he
was trying to kiss Barlow and that his conduct violated the sexual
harassment policy. Moreover, while the conduct in Mendoza was found
to be physically non-threatening, the same cannot be said in this
case, in light of Moseley’s pushing and pulling at Barlow and her
desperate attempt to defend herself. Mendoza, then, does not shield
Piggly Wiggly’s reliance on Gupta is similarly unavailing. In
broad terms, the plaintiff in that case complained of inappropriate
comments and phone calls, staring, touching of jewelry during
conversation, and touching of the plaintiff’s knee and hem of her
insufficient primarily because its motivation was ambiguous. While
the court conceded that the defendant should not have touched the
plaintiff’s knee and hem, because the touches were not “coupled
with any verbal suggestions or advances,” id. at 585, and because
sufficient evidence of severity. As reasoned above, the severity in
this case is much clearer.
This case is more like the Eleventh Circuit’s decision in
Johnson than Mendoza or Gupta. In Johnson, the plaintiff alleged
that the defendant made frequent inappropriate comments, stared at
the plaintiff, attempted to massage her, acted as if he was going
to kiss her, inappropriately rubbed his body parts against her,
and, after getting the plaintiff’s attention, pulled up his pants
to reveal an imprint of his private parts. 234 F.3d at 506. The
court found that the pants-pulling incident, unwanted massages, and
touching of body parts were sufficiently severe that, when combined
with the frequency of these and the defendant’s comments, the
Similarly, in this case, the frequency of Moseley’s visits and
comments and the severity of the forced kissing incident prevent
this court from deciding as a matter of law that Moseley’s conduct
was not severe or pervasive. Whether Moseley’s conduct crossed the
baseline is a question of fact for a jury, not a question of law
for the court.
2. A Basis for Holding Piggly Wiggly Liable
Piggly Wiggly next argues that it cannot be held liable for
sexual harassment because it is shielded by what is known as the
Faragher or Ellerth defense. In these two cases, the Supreme Court
held that an employer is not vicariously liable for a hostile work
environment created by a supervisor if “the employer exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior” and the “employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765;
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
Barlow, however, correctly argues that the defense does not
apply when the harassing supervisor is within the employer’s upper
management. As the Eleventh Circuit noted in Dees v. Johnson
Control World Services, Inc., 168 F.3d 417, 422 (11th Cir. 1999),
the Faragher defense only applies to one theory of vicarious
harassment by the existence of his agency relationship with the
employer.” The court held that an employer may still be vicariously
liable, without regard to the defense, if “the supervisor holds
such a high position in the company that he could be considered the
employer’s ‘alter ego.’” Id. at 421-22. Accordingly, under the
vicarious liability theory that Barlow advances, the Faragher
defense is unavailable to Piggly Wiggly at the summary judgment
The question then becomes how high of a position is high
slightly different question, the Eleventh Circuit in Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1279 (11th Cir. 2002),
held that a manager’s knowledge of a sexual harassment complaint
could be imputed to the employer when the manager was separated in
the corporate structure from the employer’s president by only one
The Supreme Court appears to have recognized this in
Faragher and Ellerth, because in both cases the Court noted with
approval that liability may attach, regardless of remedial
action, in situations “where the agent’s high rank in the company
makes him or her the employer’s alter ego.” Ellerth, 524 U.S. at
758; Faragher, 524 U.S. at 789. This court is unprepared to find,
as a matter of law, that Moseley was Piggly Wiggly’s alter ego
for the purposes of resolving this controversy.
person. In this case, of course, the connection is closer than
that, as Moseley reported directly to Piggly Wiggly’s president,
with no one separating them in the corporate structure. Other
circuits have centered the inquiry on whether the harasser held a
“sufficiently high position in the management hierarchy.” Ackel v.
Nat’l Commc’ns, Inc., 339 F.3d 376, 384 (5th Cir. 2003) (quoting
Faragher, 524 U.S. at 789). The Tenth Circuit has held that a vice
qualified as an alter ego, Mallinson-Montague v. Pocrnick, 224 F.3d
1224, 1232-33 (10th Cir. 2000), and the Seventh Circuit has held
the same for a corporate officer, Johnson v. West, 218 F.3d 725,
730 (7th Cir. 2000). Because of Moseley’s comparable role to the
supervisors in Miller, Mallinson-Montague, and Johnson, the court
finds that it as a jury issue as to whether Moseley acted as Piggly
Wiggly’s alter ego, so that his conduct and knowledge are imputed
to the company. Piggly Wiggly can succeed with its Faragher defense
only if Barlow fails to prove that Moseley was Piggly Wiggly’s
Alabama courts first recognized the tort of outrage, otherwise
known as intentional infliction of emotional distress, in American
Road Service Co. v. Inmon, 394 So. 2d 361 (Ala. 1980). The court
held that “one who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional distress to another is
subject to liability for such emotional distress and for bodily
emphasized that, in order to be actionable, the conduct must be “so
outrageous in character and so extreme in degree as to go beyond
all possible bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized society.” Id. The resultant
emotional distress “must be so severe that no reasonable person
could be expected to endure it.” Id.
Unsurprisingly, the Alabama Supreme Court “has consistently
held that the tort of outrage is a very limited cause of action
that is available only in the most egregious circumstances.” Thomas
v. BSE Indus. Contractors, Inc., 624 So. 2d 1041, 1044 (Ala. 1993).
Nonetheless, the court has recognized the tort in cases “involving
egregious sexual harassment.” Id. As with Title VII cases, the line
separating egregious sexual harassment from non-actionable conduct
is not entirely clear. In Busby v. Truswal Systems Corp., 551 So.
2d 322 (Ala. 1989), the Alabama Supreme Court reversed a grant of
summary judgment on the plaintiffs’ outrage claim. In that case,
the plaintiffs submitted evidence that the supervisor made many
sexually inappropriate comments, “acted as if he was going to pinch
one plaintiff’s breasts with a pair of pliers and with his hands,”
attempted to follow one plaintiff into the restroom, followed a
plaintiff home, stared at the plaintiffs, and put his arm around
the plaintiffs while grabbing their arms and stroking their necks.
Id. at 324. In Harrelson v. R.J., 882 So. 2d 317 (Ala. 2003), the
In McIsaac v. WZEW-FM Corp., 495 So. 2d 649, 650-51 (Ala.
1986), however, the court found no allegations sufficient to
support a claim for outrage when the defendant propositioned an
affair multiple times, attempted to kiss the plaintiff, looked at
the plaintiff inappropriately, and touched the plaintiff’s arm and
put his arm around her. Similarly, in Turner v. Hayes, 719 So. 2d
1184 (Ala. Civ. App. 1997), reversed on other grounds by Ex parte
Atmore Community Hospital, 719 So. 2d 1190 (Ala. 1998), the Court
of Civil Appeals affirmed the dismissal of the plaintiff’s outrage
claim. In that case, the plaintiff presented evidence that the
defendant fondled his genitals in plaintiff’s presence, poked
plaintiff and other females near their breasts, touched plaintiff’s
waist and rubbed against her while passing in a doorway, touched
her leg, tried to look up her skirt, and made several sexually
inappropriate comments and propositioned her. Id. at 1187.
Alabama federal courts have often had occasion to decide
Mere requests for sexual favors are not sufficient. Nor
are demands which, if refused, carry a consequence of
economic loss or loss of status at employment sufficient.
However, when the sexual impositions are not merely
verbal or economic, but become physical impositions, the
harasser is no longer attempting to request sexual favors
(in exchange for job security), but is instead attempting
to force sexual liberties. An employee can decline even
the most obscene request to be touched in a sexual
manner. An employee cannot decline a physical act that
has already occurred. At that point, the harasser's
conduct goes beyond the simply base and oversteps the
tolerable bounds of a civilized society.
Brewer v. Petroleum Suppliers, Inc., 946 F. Supp. 926, 936 (N.D.
Ala. 1996) (citations omitted).
The court finds that Barlow’s outrage claim, just as her Title
VII claim, should be decided by a jury. Judge Propst was correct to
note that “attempting to force sexual liberties” is actionable
conduct, and that is what is alleged here. Defendants’ cited cases
are not to the contrary, because the forced sexual contact present
in this case is lacking in those cases. In McIsaac and Turner, for
instance, while the plaintiffs complained of unwanted touching, the
intent behind the touching was not as clear as in this case - while
poking near a plaintiff’s breasts, contact in a doorway, putting an
arm around a plaintiff, and touching a plaintiff’s arm or leg can
certainly be offensive, that type of contact does not rise to the
level of the forceful attempted kiss in this case. The same is true
Healthcare Authority, 852 F. Supp. 1512 (M.D. Ala. 1994), Durham v.
Philippou, 968 F. Supp. 648 (M.D. Ala. 1997), and Burden v.
International Longshoremen’s Association, 510 F. Supp. 2d 618 (S.D.
Ala. 2007). The ambiguous motivation and/or less severe contact in
those cases separates them from this case.
The court finds this case much more similar to Mills v. WexTex Industries, Inc., 991 F. Supp. 1370 (M.D. Ala. 1997). In Mills,
the defendant pinned plaintiff against a wall and tried to kiss
her, grabbed her breasts and buttocks, pinched her, tried to pull
her into his office, and made inappropriate comments. Id. at 1386.
The court there found that the unambiguous, inappropriate touchings
Accordingly, the court will deny summary judgment on Barlow’s
C. Piggly Wiggly’s Liability on State-Law Claims
Finally, Piggly Wiggly contends that it cannot be held liable
employer may be held either directly or vicariously liable for an
intentional tort committed by an employee. Potts v. BE & K Constr.
Co., 604 So. 2d 398, 400 (Ala. 1992). An employer may not be held
vicariously liable, however, for sexual harassment by an employee
when the employee acts only to “satisf[y] his own lustful desires,”
as is the case here. Ex parte Atmore Cmty. Hosp., 719 So. 2d 1190,
1194-95 (Ala. 1998). Piggly Wiggly, then, may only be held liable
under a direct liability theory. “The employer is directly liable
for its own conduct if it authorizes or participates in the
Defendants do not contest the severity of Barlow’s
emotional distress, but regardless Barlow has presented
sufficient evidence to allow a jury to decide whether the
requisite severity is present. (Doc. 21-1 at 48:4-53:23).
employee's acts or ratifies the employee's conduct after it learns
of the action.” Potts, 904 So. 2d at 400. “An 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.” Atmore Cmty. Hosp., 719 So. 2d at
Barlow does not dispute that, unless Moseley’s knowledge and
actions may be imputed directly to Piggly Wiggly, Piggly Wiggly did
not authorize, participate in, or ratify Moseley’s conduct because
it took prompt corrective action as soon as Bullard learned of
Barlow’s complaint. Barlow only contends that Moseley’s knowledge
and conduct, by virtue of his position within Piggly Wiggly, should
be imputed to Piggly Wiggly and support the company’s direct
liability, just as for her Title VII claim.
While Alabama courts have not squarely addressed the question,
the court is persuaded by Barlow’s position. Moseley, as one of
only three executive vice presidents, reported directly to the
president and was a corporate officer. He was one of the primary
Because a corporation can only know things and act through its
people, and because Moseley’s position within Piggly Wiggly is
clearly high enough to potentially impute alter ego liability for
a very similar Title VII cause of action, the court finds that
Moseley, even for state-law purposes, arguably acted as Piggly
Wiggly’s alter ego. At this stage, Piggly Wiggly may therefore
fairly be held responsible for participation in and ratification of
Moseley’s conduct, making the company potentially liable under
For the reasons stated above, defendants’ motion for partial
summary judgment (Doc. 19) is DENIED.
Perhaps the question of a possible conflict-of-interest in the
representation of both defendants by the same law firm should have
been addressed and resolved sooner, but it must be dealt with
conference at 10:30 AM on October 27, 2015, in chambers. Louia
Moseley shall be present in person. A court reporter shall likewise
DONE this 2nd day of October, 2015.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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