Whitford v. Sub-Line Associates Inc

Filing 65

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 7/21/17. (SAC )

FILED
2017 Jul-21 AM 09:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DESIRE WHITFORD,
Plaintiff,
v.
SUB-LINE ASSOCIATES, INC.
Defendant.

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CV-15-BE-1678-S

MEMORANDUM OPINION
This matter is before the court on “Defendant’s Renewed Motion for Judgment as a
Matter of Law; or, in the Alternative, Motion for Remittitur; or, in the Alternative, Motion for a
New Trial.” (Doc. 61). The Plaintiff filed a response. (Doc. 64). For the reasons stated in this
Memorandum Opinion, the court WILL DENY all three motions.
A. RENEWED JMOL 50(b)—DOC. 61
The Defendant, Sub-Line Associates, Inc., brings this motion pursuant to Rule 50(b),1 and
renews its motion under Rule 50(a) made during the trial of this case. The court had granted in
part and denied in part Sub-Line’s original motion for judgment as a matter of law, granting the
motion as to the FLSA claim, and denying the motion as to all other claims. This case was tried

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Although the docket sheet entitles this motion as a “Motion to Alter Judgment,” which
would fall under Rule 59, the actual title of the motion listed on the document is “Defendant’s
Renewed Motion for Judgment as a Matter of Law; or, in the Alternative, Motion for Remittitur;
or, in the Alternative, Motion for a New Trial.”
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before a jury from February 27-March 2, 2017. The court entered a final judgment (doc. 56) on
March 6, 2017 in accordance with the following jury verdict: verdict in favor of the Plaintiff,
Desire Whitford, and against Sub-Line on the claims of sexual harassment brought pursuant to
Title VII; hostile work environment brought pursuant to Title VII; retaliation based on
complaints of sexual harassment brought pursuant to Title VII; invasion of privacy; assault and
battery; and negligent supervision, training, and/or retention. However, the jury found for SubLine on the claim for wanton supervision, training and/or retention. The jury awarded damages
to Ms. Whitford as follows: $1,956 in lost wages, $30,000 for emotional pain and mental
anguish, and $100,000 in punitive damages. (Doc. 55). Sub-Line’s renewed Rule 50(b) motion
requests that this court set aside the verdict and judgment in favor of Ms. Whitford and enter a
judgment in favor of Sub-Line as a matter of law on all of the Plaintiff’s claims. See Fed. R. Civ.
P. 50 (a) & (b).
In its 50(b) motion, Sub-Line raises the following issues: (1) whether the evidence was
sufficient to support Sub-Line’s liability on the tangible job action sexual harassment claim,
because it says Heather Brown made the decision to terminate her and not James Connison, the
alleged harasser; (2) whether the evidence was sufficient to support Sub-Line’s liability on the
hostile work environment claim, because it says Sub-Line had no notice of the harassment and
was not vicariously liable for it; (3) whether the evidence was sufficient to support Sub-Line’s
liability on the retaliation claim, because it says the Plaintiff failed to establish a causal link
between her complaints of sexual harassment and the termination; (4) whether the evidence was
sufficient to support Sub-Line’s liability on the invasion of privacy claim for Mr. Connison’s
conduct; (5) whether the evidence was sufficient to support Sub-Line’s liability on the assault
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and battery claim for Mr. Connison’s conduct; and (6) whether the evidence was sufficient to
support Sub-Line’s liability on the negligent hiring, training, or supervision claim. The court will
address these issues separately below.
“[I]n ruling on a party’s renewed motion under Rule 50(b) after the jury has rendered a
verdict, a court’s sole consideration of the jury verdict is to assess whether that verdict is
supported by sufficient evidence.” Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir.
2007). To determine the sufficiency of the evidence, a court considers “all the evidence, drawing
all reasonable inferences in favor of the nonmoving party.” Hubbard v. BankAtlantic Bancorp.,
Inc., 688 F.3d 713, 724 (11th Cir. 2012). However, the court does “not make credibility
determinations or weigh the evidence.” Id. Rather, the court “give(s) credence to evidence
supporting the nonmoving party’s case, as well as ‘uncontradicted and unimpeached’ evidence
supporting the moving party, ‘at least to the extent that the evidence comes from disinterested
witnesses.’” Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)
(internal quotation marks omitted)).
A. Tangible Job Action Sexual Harassment
To succeed in proving discrimination based on sexual harassment resulting in a tangible
employment action, Ms. Whitford must have proven by a preponderance of the evidence that Mr.
Connison made unwelcome sexual advances toward her; that Mr. Connison took an adverse
tangible employment action against her or caused Sub-Line to do so; that Ms. Whitford 's
rejection of the unwelcome sexual advances was a motivating factor that prompted Mr. Connison
to take the adverse tangible employment action or to cause Sub-Line to do so; and that Ms.
Whitford suffered damages because of the adverse tangible employment action. See Pattern Civ.
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Jury Instr. 11th Cir. 4.8 (2013); 42 U.S.C. § 2000e-2(a); see also Hulsey v. Pride Rests., LLC,
367 F.3d 1238, 1245 (11th Cir. 2004).
Sub-Line’s challenge to the sufficiency of the evidence regarding her termination based
on sexual harassment focuses upon the argument that because Heather Brown—not James
Connison— made the decision to terminate her, no causal link exists between Mr. Connison’s
sexual harassment and the termination by Ms. Brown. A plaintiff must establish a causal link
between, on one hand, the tangible employment action and, on the other, the discriminatory
animus towards the plaintiff based on the sexual harassment and/or the plaintiff’s reaction to the
harassment. See Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1245-46 (11th Cir.
1998).
The court notes preliminarily that, although Sub-Line focuses solely on the decision to
terminate Ms. Whitford as the adverse employment action, she established another adverse
employment action—Mr. Connison took her off the work schedule. Ms. Whitford testified that,
after Mr. Connison’s sexual harassment of her in the cooler on October 12, 2014, when she
rebuffed his unwelcomed advances, he took her off the store’s work schedule that he controlled.
Although she testified that she was willing to work and continued to ask him and Ms. Brown
when she would be placed back on the work schedule, she never worked another day at the
Subway store after cooler incident until she was terminated on October 16, 2014. Mr. Connison
disputed that he was responsible for taking her off the work schedule, but this disputed evidence
was a question of fact for the jury. Ms. Whitford’s testimony is legally sufficient to support the
jury’s finding that Mr. Connison took an adverse tangible employment action against her or
caused Sub-Line to do so; that Ms. Whitford 's rejection of the unwelcome sexual advances was a
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motivating factor that prompted Mr. Connison to take the adverse tangible employment action or
to cause Sub-Line to do so; and that Ms. Whitford suffered resulting damage.
As to termination, Mr. Connison testified at trial that, at the time Ms. Whitford was
employed at Subway, he was the manager-in-training for the store where she worked, and he was
her boss. Although Mr. Connison gave varying responses when asked whether he was at the
meeting when Ms. Whitford learned she was terminated, Mr. Connison consistently and
repeatedly testified at trial and in his deposition that he was involved in the decision to terminate
Ms. Whitford’s employment:
Q. Were you involved in the termination meeting of Ms. – where Ms. Whitford
was fired?
A. [Ms. Whitford]: No.
Q. Was it a joint decision amongst you, Ms. Brown, and Ms. Cannon to
terminate her?
A. It was up to them, yes.
Q. Was it —were you involved in the decision?
A. Yes.
Q. Okay. So you were involved in the decision to terminate her?
A. Yes.
Q. You were involved in the termination meeting of Ms. Whitford?
A. No.
THE COURT: What do you mean by termination meeting? I want to
know what you understand that mean.
THE WITNESS: What I understand is Ms. Cannon and Ms. Brown
would have to pull Desire face to face to terminate her.
THE COURT: So when you say you weren’t involved in the termination
meeting, you’re referring to the meeting with Ms. Whitford?
THE WITNESS: Yes.
THE COURT: Thank you.
Q. Okay. Line, Page 16, Line 21 of your deposition.
* * * The question, were you in the – were you there involved in the termination
meeting and you said what?
A. Of Desire?
Q. And my question is, right. What’s your answer?
A. Yes.
Q. So it was a joint decision amongst the three of y’all to terminate her. What’s
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your answer?
A. Yes.
As to the authority he had as manager-in-training, Mr. Connison also testified at trial that
he had authority to discipline and “write up” the employees working at his Subway store. And,
although he testified that he did not have authority to fire them without going through Heather
Cannon and/or Heather Brown, he acknowledged that he did have a “say so” in the firing. He
testified in his deposition that Ms. Cannon and Ms. Brown “would generally follow [his] advice”
about whether to fire employees at his store, and he acknowledged that deposition testimony at
trial.
Ms. Whitford testified that James Connison was responsible for taking her off the work
schedule from the time she rebuffed his sexual advances on October 12, 2014 until she was fired
on October 16, 2014. She also testified that he participated in the decision to fire her, being
present at the termination meeting with Heather Brown on October 16, 2014; when Heather
Brown suggested that Ms. Whitford change stores because she had a problem with Mr. Connison,
he stated instead that Ms. Whitford was terminated.
A

A

Q
A

[Ms. Whitford]: I told [Ms. Brown] I had to talk to her and I did not feel
comfortable saying it in front of James because he made everything into
a joke. And I didn’t feel like this was anything that should have been
joked about. I wasn’t going to laugh it off anymore. I had had enough.
And so she sent him inside. I told her everything that had been going
on and so on and so forth and she suggested possibly going to the Boaz
or to Guntersville store. Well, then she said, well, I have to . . .let
James come out here and tell him what you said. . . .
***
Her responses [sic] was, well, since you have a
problem with James anyway, it would probably be better
for you to go to another store.
And So James said those are grounds for termination
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Q
A
Q

A
Q

A

and that was it.
And what was the status of your employment at that
time?
At that time I was still working, but -- when
James said I was terminated, I was terminated.
During this conversation, how soon after you had
spoken with Heather Brown about the sexual harassment
again did this termination conversation happen?
The next day.
In terms of being out there on the 16th and the
conversation we were just talking about out in the alley
and James had gone inside and come back out, how soon
after that did this conversation where you were fired
happen?
Immediately.

This evidence is legally sufficient to support the jury’s finding that Mr. Connison took an
adverse tangible employment action against her or caused Sub-Line to do so; that Ms. Whitford 's
rejection of the unwelcome sexual advances was a motivating factor that prompted Mr. Connison
to take the adverse tangible employment action or to cause Sub-Line to do so.
Ms. Brown and Mr. Connison said the reason for her termination was that Ms. Whitford
allowed a non-employee into the store after hours against the rules. However, evidence such as
the following was legally sufficient to support the jury’s finding that the true reason for her firing
was Mr. Connison’s sexual harassment of her and her complaints about his conduct: evidence
about the timing of her firing immediately after she complained to management of Mr.
Connison’s sexual harassing conduct; evidence that Kendra Dean, the person who trained Ms.
Whitford, committed the same violation without being fired; and evidence that Sub-Line
management knew of Ms. Whitford’s violation of the rule two weeks before, gave her a verbal
warning, but did not discipline her in writing until she further rebuffed Mr. Connison’s advances.

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Put another way, the court cannot and does not find that the jury lacked legally sufficient
evidence for the requisite causal link on this claim; rather, it finds that the evidence sufficiently
supports the jury’s verdict for the Plaintiff on the claim for sexual harassment resulting in a
tangible job action brought pursuant to Title VII.
For all of these reasons, the court’s denial of Defendant’s original motion for judgment as
a matter of law on that claim was proper, and the court WILL DENY the Defendant’s renewal of
that motion as to the tangible job action sexual harassment claim.
B. Sexual Harassment - Hostile Work Environment
To succeed on her hostile work environment claim against Sub-Line, Ms. Whitford must
have proven by a preponderance of the evidence that her supervisor harassed her because of her
sex; that the harassment created a hostile work environment for her; and that she suffered
damages as a result. See Pattern Civ. Jury Instr. 11th Cir. 4.6 (2013); 42 U.S.C. § 2000e-2(a);
see also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en banc).
In its renewed motion for judgment as a matter of law on the hostile work environment
claim, the Defendant Sub-Line argues that the evidence did not support a basis for holding SubLine liable for the bad acts of its employee(s); it argues that the court should not have submitted
this claim to the jury for the following reasons: (1) Mr. Connison did not have the power to fire
employees, so Sub-Line should not be held vicariously liable for his conduct; (2) Sub-Line had
no notice of Mr. Connison’s harassing conduct.
As discussed above, Ms. Whitford presented evidence that Mr. Connison disciplined
and/or fired Ms. Whitford, or that he caused Sub-Line to do so. Ms. Whitford also presented
evidence that Ms. Brown and Ms. Cannon—both of whom were Sub-Line managers with
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authority to discipline, hire and fire—had notice of Mr. Connisons’s sexual advances toward her.
Ms. Whitford testified that, during the second week of her employment, Ms. Brown met with Ms.
Whitford and a couple of her other team members “and said she knows how James is and if
anybody feels like he does or says anything out of the way to let her know and she’ll handle it.”
After that meeting, Ms. Whitford pulled Ms. Brown aside and “told her about his sexual
comments, him [sic] touching me, him – everything about the sub comments,2 the sauce
comments,3 bending over comments, slapping me on my buttocks, grabbing me on my boobs,
pulling me toward him, I told her everything . . . .and she said she would handle it.” Ms.
Whitford testified that she knew of nothing Ms. Brown subsequently did to handle the situation,
and that Mr. Connison’s behavior did not change.
Ms. Whitford also testified that, on October 15, 2014, she reported Mr. Connison’s sexual
harassment of her in phone conversations with both managers, Ms. Brown and Ms. Cannon. She
told Ms. Cannon about Mr. Connison’s “comments and actions and everything else, and she
informed me that I need to take it up with Heather Brown.” Ms. Whitford had also told Ms.
Cannon that she had previously complained to Heather Brown about Mr. Connison’s sexual
harassment. Thirty minutes after speaking with Ms. Cannon, she spoke with Ms. Brown and
advised her of Mr. Connison’s harassment, resulting in the meeting at the Subway the next day,
when Ms. Whitford was fired.

2

Mr. Connison’s “sub comments” implied a relationship between the length of a 12-inch
sub sandwich and his sexual organ: “I have more than twelve inches for you.”
3

Mr. Connison made what Ms. Whitford took to be a sexual reference, stating that “he
heard his was spicy, and asked [Ms. Whitford] if [she] wanted to try it.”
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Accordingly, sufficient evidence existed that Sub-Line knew or should have known of the
harassing conduct and failed to take prompt remedial action. Therefore, sufficient evidence
existed for the jury to hold Sub-Line liable for the hostile work environment created by Mr.
Connison against Ms. Whitford. The court’s denial of Defendant’s motion for judgment as a
matter of law on that claim was proper, and the court WILL DENY the Defendant’s renewal of
that motion as to the hostile work environment claim.
C. Retaliation
To establish a case of retaliation based on complaints about sexual harassment, brought
under Title VII, Ms. Whitford must have proven by a preponderance of the evidence that she
reported sexual harassment; that Sub-Line subsequently took an adverse employment action
against her because of the report of sexual harassment, ie., the adverse employment action would
not have occurred but for her reporting the sexual harassment; and that she suffered damages as a
result of the adverse employment action. 42 U.S.C. § 2000e et. seq.; see University of Texas Sw.
Med. Ctr. v. Nasser, 133 S. Ct. 2517, 2533-34 (June 24, 2013).
In its renewed motion for judgment as a matter of law, Sub-Line asserts that Ms.
Whitford failed to establish a “but-for” causal link between her termination and her complaint of
sexual harassment. Specifically, Sub-Line first argues that the decision to fire Ms. Whitford
occurred after she complained on October 16, 2014 and thus, the complaint could not have
caused her termination. Secondly, it argues that Ms. Whitford’s claim that her failure to
capitulate to Mr. Connison’s sexual advances caused her firing precludes her ability to recover
for retaliation, which requires her complaints about the sexual advances to be the “but-for” cause
of her termination.
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The evidence does not support the first argument that her complaints of Mr. Connison’s
sexual harassment occurred after the termination decision. Rather, as set out earlier in this
opinion, Ms. Whitford testified that she complained of such harassment to Ms. Cannon on
October 15, 2014, and to Ms. Brown in September of 2014,weeks before her termination, and
then again on October 15 and 16, 2014. Ms. Whitford also testified that the discussion with
Heather Brown about being fired for the infraction of letting a non-employee into the store after
hours made no sense because this infraction had been addressed and settled two weeks before
without a formal write-up. This testimony provided legally sufficient evidence for a jury to
determine that the true reason for her firing was her protected activity of complaining about
sexual harassment.
Sub-Line’s second argument focuses on the supposed inconsistency between, on one
hand, Ms. Whitford’s sexual harassment claim that the cause of her termination was her failure to
capitulate to Mr. Connison’s sexual advances and, on the other hand, her retaliation claim that
the “but-for” cause of her termination was her protected conduct in complaining of sexual
harassment, not her rebuffing of the harassment. This argument is inaccurate and
mischaracterizes Ms. Whitford’s testimony. One reason that it is inaccurate is that it assumes
that the only possible adverse employment action was her termination. As noted earlier, Ms.
Whitford’s testimony stated that Mr. Connison responded to her rejection of his sexual advances
by taking her off the work schedule, among other things. The evidence was legally sufficient for
the jury to find that taking her off the work schedule depriving her of pay was an adverse
employment action separate from her firing, and that Ms. Whitford’s spurning of Mr. Connison’s
advances was a motivating factor for such action, resulting in damage to her. That finding would
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not be inconsistent with the finding that her complaints of sexual harassment were the but-for
cause of her termination.
Similarly, as to the hostile work environment claim, Ms. Whitford testified about Mr.
Connison’s repeated unwelcome, offensive acts and statements about sex. This evidence was
legally sufficient for the jury to find that, even apart from her termination, such offensive acts
and statements were so severe or pervasive that they materially altered the terms and conditions
of Ms. Whitford’s employment, and that she so believed. That finding would not be inconsistent
with the finding that her complaints of sexual harassment were the but-for cause of her
termination.
Because the court’s denial of the original motion for judgment as a matter of law was
proper and remains correct, and because legally sufficient evidence supports the jury verdict on
this claim, the court WILL DENY the renewed motion for judgment as a matter of law as to the
retaliation claim.
D. Sub-Line’s liability under Alabama law for invasion of privacy
1. The tort of invasion of privacy
To successfully establish the tort of invasion of privacy under Alabama law against SubLine, Ms. Whitford must have provided legally sufficient evidence to reasonably satisfy the jury
that the matters into which Mr. Connison intruded are of a private nature; that his intrusion was
intentional and wrongful; that his intrusion would be so offensive or objectionable that a
reasonable person subjected to it would experience outrage, mental suffering, shame or
humiliation; and that Sub-Line is liable for Mr. Connison’s actions. See APJI 35; Busby v.
Truswal Sys. Corp., 551 So. 2d 322, 323-24 (Ala. 1989).
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Sub-Line argues that Ms. Whitford’s “testimony of ‘brushing her body,’ tugging at her
belt, and a few smatterings of ‘sex talk’ during the 10-17 hours Plaintiff and Defendant worked
together do[es] not meet the high standard necessary for establishing the tort of invasion of
privacy.” (D’s Renewed Motion. Doc. 61, at 13). However, Sub-Line’s summary of Ms.
Whitford’s testimony minimizes the extent of Mr. Connison’s sexual harassment and does not
sufficiently reflect the egregiousness and intrusiveness of his conduct and remarks. Rather, her
testimony was that Mr. Connison touched her “all the time” when they were working together,
and the touching sometimes was accompanied by his locking a door or blocking her exit. Her
testimony also stated that he kept up a running banter of sexually-charged remarks at work, and
in phone calls and texts, often explicitly naming body parts and sex acts, and asking about her
sex life. Exhibit “A,” attached, provides more specific examples of Ms. Whitford’s testimony
about his sexual harassment.
According to her testimony, her response to these actions and remarks was to rebuff them,
and that she felt “scared,” “embarrassed,” “degraded,” “like a piece of meat,” “self-conscious,”
and “humiliated.” She stated that the harassment affected her job because she dreaded going to
work and was scared about what would happen next at work. However, she also explained that
she felt that she had to put up with Mr. Connison’s harassment despite these feelings because he
was her boss and she needed the job because she had two small children to support. Previously
in this Memorandum Opinion, the court set out in detail Ms. Whitford’s testimony that she had
notified managers Brown and Cannon about the sexual harassment.
The court re-affirms that Ms. Whitford presented legally sufficient evidence to support
the jury’s finding that Mr. Connison invaded her privacy, as well as its finding that Sub-Line is
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responsible for that conduct. Alabama law supports this decision.
In Busby v. Truswal Sys. Corp, the Alabama Supreme Court stated that “[t]he United
States Supreme Court has specifically recognized ‘marriage’ and ‘sexual’ concerns as
fundamental rights, entitled to privacy protection.” 551 So. 2d at 324. The Alabama Supreme
Court reversed the Circuit Court’s grant of summary judgment on the invasion of privacy claim
where the evidence of seventeen separately listed instances of lewd touching and comments
reflected that the male supervisor intruded into the sex lives of female employees in an offensive
manner: e.g., comparing employees’ nipple sizes, speculating about their sex lives, and asking
one plaintiff if she would hold his penis while he urinated, etc. The Court also found that
evidence of the employees’ complaints to the boss of their supervisor, who allegedly did not do
enough to alleviate the situation, provided a factual issue for the jury regarding notice to the
company and a means of holding the company liable for the wrongful conduct. Id.
In Phillips v. Smalley Maintenance Servs., the Alabama Supreme Court found that
evidence of sexual harassment by a company president against an employee supported a claim
under Alabama law for invasion of privacy under the “intrusion upon seclusion” theory.
Examples of the president’s conduct include: the president’s repeatedly locking his office door
when he called the employee there for conversation; the president’s inquiring about how often
she and her husband had sex, and what “positions” they used; the president’s asking whether she
had ever engaged in oral sex and insisting that she have oral sex with him or lose her job; the
president’s covering the office window with paper to prevent anyone from seeing inside before
the employee forced her way out of the office; and striking her across the buttocks with his hand
when she was in the process of leaving. This harassment, which occurred two or three times a
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week for a period of three months, caused the employee to be nervous and unable to adequately
perform her work, and ended in the employee’s termination. 435 So. 2d 705, 707 (Ala. 1983).
The court finds that the nature of sexual harassment evidence in Busby and Phillips is
closely analogous to the nature of the evidence in the instant case. However, the cases that SubLine cites as support for its argument that a few sexual propositions do not support an invasion of
privacy claim, involve less egregious and intrusive facts than those listed above. For example,
McIsaac v. WZEW-FM Corp. involved several unwanted, rebuffed sexual advances by the male
president and principal owner of a corporation operating a radio station toward a female sales
person before her firing: a conversation in which he implied that he wanted to have an affair with
her coupled with a subsequent thwarted attempt to kiss her; two or three weeks later, a suggestive
look, a request to come close; and a request for dinner, all refused; a phone call suggesting an
out-of-town visit together, refused; and several “suggestive lurks or little innuendoes.” 495 So.
2d 649, 650 (Ala. 1986). The court notes that, unlike the instant case, these McIsaac facts
involve no physical touching against the plaintiff’s will, although the thwarted kiss was an
attempt to do so, and that the remarks in McIsaac were suggestive but were not overt sexual
propositions, inquiries into her sex life, and explicit naming of sexual body parts and sex acts
like Mr. Connison’s remarks.
In another Alabama case on which Sub-Line relies, Ex parte Atmore Cmty. Hosp., 719
So. 2d 1190, 1194-5 (1998), the Supreme Court of Alabama found that the co-employee’s initial
conduct toward the plaintiff—looking up her skirt, making lewd comments, and asking her to
meet him outside of work hours for non-business purposes—“constituted substantial evidence
that he committed an invasion of privacy.” However, because evidence existed that the co15

employee’s sexually harassing conduct ceased after the plaintiff reported the conduct to a
supervisor, who ordered him to stop, and that his subsequent actions did not constitute invasion
of privacy, the Court found no basis for holding the hospital liable on this claim. Id. The
Supreme Court’s Ex parte Atmore opinion fails to support an argument that Mr. Connison’s
actions do not constitute the tort of invasion of privacy. Indeed, Ms. Whitford’s testimony
reflected that Mr. Connison’s actions were more of an egregious intrusion into private matters
than the initial conduct of the co-employee at the hospital. In addition, the individuals harassing
the plaintiff in Ex parte Atmore were co-employees, whereas Mr. Connison was a supervisor.
Sub-Line also cites as support two federal district court decisions that are not binding on
this court and do not involve closely analogous facts: Portera v. Winn Dixie of Montgomery,
Inc., 996 F. Supp. 1418 (M.D. Ala. 1998) and Beasley v. Wal-Mart Stores East, LP, 2006 WL
3333069 (S.D. Ala. Nov. 16, 2006). In Portera, the district court found that the harassment “did
not consist of continual intrusive inquiries into sexual interests or activities as did the conduct in
Phillips.” 996 F. Supp. 1418, 1436 (M. D. Ala. 1998). That same distinction would apply to
distinguish the conduct in Portera from Mr. Connison’s harassment in the instant case. In
Beasley, the invasion of privacy claim was based on three comments by the plaintiff’s shift
supervisor: offering to teach her how to play strip poker; commenting about her liking nuts,
which she interpreted to be “men’s nuts”; and asking her if she had a boyfriend, which she
interpreted to be a prefatory question to asking her out on a date. The district court granted the
employer’s motion for summary judgment on the invasion of privacy claim, finding that a
reasonable jury could not find that these three comments invaded her privacy. 2006 WL
3333069, at *1 & *5-6. The nature and quantity of the incidents of sexual harassment in the
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instant case, containing continual, intrusive inquiries into Ms. Whitford’s sexual life and frequent
touching in a sexual way, are not analogous to those in Portera and Beasley.
For all of these reasons, the court confirms its finding that the evidence in the instant case
was legally sufficient to support the jury’s finding that Mr. Connison committed the tort of
invasion of privacy. The court will address subsequently whether the evidence is sufficient to
hold Sub-Line liable for this tort.
2. The tort of assault & battery
To successfully establish the tort of battery under Alabama law against Sub-Line, Ms.
Whitford must have provided legally sufficient evidence to reasonably satisfy the jury as follows:
that Mr. Connison intentionally touched Ms. Whitford or her clothes; that this touching was in a
rude, angry or hostile manner; and that Sub-Line was liable for the acts of Mr. Connison. To
succeed on the claim of assault, the evidence required is similar, but instead of an actual
touching, the evidence must show an intentional offer to touch, in the same manner, under
circumstances as to create in Ms. Whitford’s mind a well-founded fear of imminent battery,
coupled with the apparent present ability to carry out the attempt. APJI 5 & 5.05; see Wright v.
Wright, 654 So. 2d 542, 544 (Ala. 1995).
Sub-Line argues that the evidence was legally insufficient to support assault and battery,
because Mr. Connison performed the acts in the midst of flirtation, and that no evidence reflects
that he was angry. This argument mischaracterizes the requirements of assault and battery:
“angry” is only one of the adjectives used to describe the manner of the touching or offer to
touch. The other adjectives describing the required manner of touching—hostile and rude—can
describe actions that are unwelcome and sexually charged but are not committed in anger. The
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Alabama Supreme Court recognized that if the touching “was intentional, was conducted with
sexual overtones, and was unwelcome . . . [t]hese factual assertions constituted substantial
evidence that [the alleged tortfeasor] committed a battery.” Ex parte Atmore, 719 So. 2d at 1194;
see also Portera, 996 F. Supp. at 1437 (finding that the plaintiff’s evidence that she was
“surprised” when the co-employee touched her buttocks and “shocked” when he put his hand in
her blouse meant that a question of fact existed of whether the touching constituted an assault
and/or battery under Alabama law).
The cases that Sub-Line cites as support for its argument do not find otherwise. See
Wright v. Wright, 654 So. 2d at 543-4 (affirming granting of summary judgment in favor of
estranged husband, finding that his driving by the plaintiff’s apartment, which is on his way to
the grocery store, provided no evidence of assault or battery); Surrency v. Harbison, 489 So. 2d
1097, 1103 (Ala. 1985) (finding that conflicting evidence resulted in a question of fact for the
jury regarding whether defendant intentionally operated mechanical rakes to cause them to hit the
plaintiff on the back and the head); Reed v. Wal-Mart Stores, Inc., 2000 WL 727113, *1 (M.D.
Ala. May 3, 2000) (S.D. Ala. 2000) (stating that the plaintiff “was never touched by . . . any WalMart employee in a hostile, angry, or rude manner” where he “was lawfully detained in a
reasonable manner for a reasonable length of time to investigate what Wal-Mart employees
reasonably believed was a case of shoplifting.”).
The court confirms its finding that the evidence in the instant case was legally sufficient
to support the jury’s finding that Mr. Connison committed the tort of assault and battery. Next,
he court will address whether the evidence is sufficient to hold Sub-Line liable for this tort.
E.. Sub-Line’s liability for Mr. Connison’s wrongful acts
18

Sub-Line argues that the evidence does not provide a basis for holding Sub-Line liable for
Mr. Connison’s intentional torts of invasion of privacy and assault and battery. Ms. Whitford
responds that Sub-Line’s ratification of his legally wrongful conduct forms a basis for company
liability.
Sub-Line’s argument that Sub-Line did not ratify Mr. Connison’s conduct ignores Ms.
Whitford’s testimony. Ms. Whitford testifed that, during her second week of employment, which
would have been in September of 2014, Sub-Line manager Heather Brown acknowledged to
store employees that she was aware of Mr. Connison’s conduct: “she had a meeting with me and
a couple other team members and said she knows how James is and if anybody feels like he does
or says anything out of the way to let her know and she’ll handle it.” Although Ms. Whitford
reported Mr. Connison’s sexual harassment to Ms. Brown in detail immediately after the
meeting, Ms. Whitford knew of nothing that Ms. Brown subsequently did to address the
harassment, and Mr. Connison’s harassment of her continued as before. Further, Ms. Whitford
testified that she again reported Mr. Connison’s sexual harassment to managers Heather Brown
and Heather Cannon on October 15, 2017. According to Ms. Whitford’s testimony, the
managers’ response was that Heather Brown met with her and Mr. Connison the next morning,
and Sub-Line fired Ms. Whitford. The evidence does not reflect that Sub-Line conducted any
investigation of Ms. Whitford’s complaint, other than telling Mr. Connison about it, priot to the
date she was fired on October 16, 2014.
This evidence is legally sufficient to support a finding that Sub-Line knew of Mr.
Connison’s wrongful conduct, knew or should have known that such conduct was a legally
wrongful act under Alabama law, and yet failed to take adequate steps to remedy the situation.
19

Therefore, the evidence is legally sufficient to support a finding that Sub-Line ratified Mr.
Connison’s wrongful acts through implicit approval. See Potts v. BE & K Const. Co., 604 So. 2d
398, 400 (Ala. 1992).
The court WILL DENY the renewed motion for judgment as a matter of law as to the
invasion of privacy claim and the assault and battery claim.
F. Negligent Training, Retention and/or Supervision of Mr. Connison
To recover on a claim of negligent training, retention and/or supervision, Ms. Whitford
must first reasonably satisfy the jury by the evidence that Mr. Connison sexually harassed her
and/or retaliated again her. Ms. Whitford has satisfied this initial step, and the court has
confirmed a sufficient basis for the jury’s findings. Next, she must also reasonably satisfy the
jury from the evidence that Sub-Line breached a duty regarding Mr. Connison’s training,
retention, and/or supervision that proximately caused Ms. Whitford’s injury. See Keel v. Banach,
624 So. 2d 1022, 1026 (Ala. 1993) (setting out those elements). To establish a duty, the evidence
must reflect that Sub-Line had “notice or knowledge, either actual or presumed, of [Mr.
Connison’s] unfitness.” See Gardner v. State Farm Mutual Auto. Ins. Co., 842 So. 2d 1, 9-10
(Ala. Civ. App. 2002) (citing Armstrong Bus. Servs. v. AmSouth Bank, 817 So. 2d 665 (Ala.
2001)).
Sub-Line argues that Ms. Whitford did not and could not make such a showing because
Ms. Whitford did not complain of sexual harassment until after Heather Brown told her that she
would fire her; because both Mr. Connison and Ms. Whitford were aware of Sub-Line’s rules
against harassing conduct in the workplace; and because Defendant conducted an investigation
after Ms. Whitford’s complaint on October 16, 2014.
20

This argument is unavailing because it ignores key testimony of Ms. Whitford that she
complained to management of Mr. Connison’s sexual harassment in September of 2014, weeks
before Heather Brown told her that she would fire her; that the sexual harassment continued
unabated through her last work day of October 12, 2014; and that she complained again to
management on October 15 and 16, 2014. No evidence existed that Sub-Line did anything to
investigate or protect her for weeks. Indeed, no evidence existed that Sub-Line investigated her
report of harassment prior to the date she was fired on October 16, 2014: too little, too late.
Sub-Line points only to the investigation that occurred after her October 16, 2014
complaint and asserts that this after-the-fact investigation is sufficient because “the conduct did
not reoccur.” Mr. Connison’s sexual harassment of Ms. Whitford did not reoccur after October
16, 2014 because Sub-Line fired Ms. Whitford. Alabama law does not support the argument that
an adequate response to complaints of sexual harassment is to ignore those complaints until the
harassed employee leaves employment, then tardily begin the investigation. See, e.g., Machen v.
Childersburg Bancorporation, Inc., 761 So. 2d 981, 985 (Ala. 1999) (reversing summary
judgment in favor of the bank defendants on the claim of negligent or wanton failure to properly
investigate, train, supervise and discipline despite the existence of a bank policy against sexual
harassment, when, after plaintiff complained of her supervisor’s resumed sexual harassment,
management failed to conduct a follow-up investigation until after the employee left the job). If it
did, employers would be encouraged to ignore sexual harassment complaints until the employee
quits or is fired and then conduct a belated investigation simply to avoid liability. Rather,
Alabama law requires an “adequate” investigation, which includes a timeliness factor. Machen,
761 So. 2d at 985. Evidence of Sub-Line’s tardy investigation does not render legally
21

insufficient the jury’s finding that Sub-Line had notice or knowledge prior to October 16, 2014 of
Mr. Connison’s repeated sexual harassment violating company rules and “unfitness” to hold his
position; Sub-Line was negligent in failing to take adequate steps to protect its employees from
him.
To the extent that Sub-Line argues it fulfilled its duty to protect from sexual harassment
with the mere promulgating or posting a company rule against sexual harassment, that argument
flies in the face of Alabama law. See, e.g., Machen, 761 So. 2d at 985. Notifying the employees
of the company’s policy against sexual harassment was a good first step; however, once Sub-Line
had notice that Mr. Connison was violating that policy, it could not rest on that policy with
impunity and close its eyes to notice of the policy’s violation. Rather, it was required to take
“adequate steps to remedy the situation.” See Potts, 604 So. 2d at 400-401. In the instant case,
the jury found that Sub-Line did not fulfill that duty and that Ms. Whitford was injured as a
result.
As the court found when it denied the original motion for judgment as a matter of law, the
evidence is legally sufficient to support that finding; therefore the court WILL DENY the
renewed motion for judgment as a matter of law as to the claim for negligent supervision,
training, and retention.
In sum, the court WILL DENY the renewed motion for judgment as a matter of law as to
all claims.
B. Motion for Remittitur
As an alternative to the motion for judgment as a matter of law, Sub-Line requests a
remittitur of the judgment under Rule 59(e) of the Federal Rules of Civil Procedure. A motion to
22

alter or amend under Fed. R. Civ. P. 59 does not provide a mechanism for a dissatisfied party to
re-litigate a matter. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (“A Rule 59(e) motion
cannot be used to relitigate old matters, raise argument or present evidence that could have been
raised prior to the entry of judgment”). The Eleventh Circuit has recognized two grounds for
granting a Rule 59 motion: "[1] newly-discovered evidence or [2] manifest errors of law or fact."
Id. at 1343 (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). Courts in this district
have recognized that an intervening change in controlling law is also a ground for reconsideration
and an exception to the law of the case doctrine. See, e.g., Summit Medical Center of Alabama,
Inc. v. Riley, 284 F. Supp. 2d 1350, 1355 (M. D. Ala. 2003) (addressing a Rule 59 motion);
Oliver v. Orange Cnty., Fla., 456 F. App'x 815, 818 (11th Cir. 2012) (listing the following
exceptions to the law of the case doctrine, allowing a district judge to reconsider a prior ruling:
"(1) new evidence; (2) an intervening change in the law that dictates a different result; or (3) that
the prior decision was clearly erroneous and would result in manifest injustice.").
In its motion, Sub-Line asserts that the judgment exceeded the statutory caps under Title
VII and that the evidence was legally insufficient to support the jury’s award of $30,000 in
compensatory damages for emotional pain and mental anguish, and $100,000 in punitive
damages, because Sub-Line employs less than 50 employees. In support of that argument, it
presents the declaration of Keith Comer, stating that, in 2014, the average number of employees
among the three stores that Sub-Line owns and operates is 20 employees. See 42 U.S.C. §
1981a(b)(3).4 One of Ms. Whitford's responsive arguments is that Sub-Line has waived the right
4

This statute provides: “The sum of the amount of compensatory damages awarded under
this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish,
loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages
23

to assert the statutory cap based on its size and the number of employees. Ms. Whitford first
raised this issue in her motion in limine (doc. 40, at 5-6), stating that "it is Defendant's burden to
prove that it is subject to one of Title VII's damage caps, and Defendant has failed to preserve the
issue in the pretrial." Applying the Supreme Court decision of Concrete Pipe & Prod. of Cal,
Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 628-30 (1993) to the instant case, the
concerns of due process and the traditional burden of proof require the defendant employer to
bear the burden of persuasion and production on the caps issue, but it failed to preserve that
issue; in the pretrial order, which superceded the pleadings, Sub-Line did not include this
defense, but simply denied the matters upon which the Plaintiff had the burden.
In its Order on the motion in limine, this court granted the request that Sub-Line be
prohibited from introducing evidence relating to its size for the purpose of invoking statutory
caps for Title VII claims: "The Defendant has acknowledged that it is not pursuing the defenses
that were not stated in the Pretrial Order and does not intend to offer evidence supporting such
defenses. . . . [T]he court ORDERS that the Defendant shall not present evidence relating to its
size for the purpose of invoking caps that Congress imposed through the 1991 amendments to
Title VII, as Defendant has not raised that defense [in the pretrial order] and it has agreed not to
present arguments to the jury regarding it." (Doc. 48, at 1-2).
Given Sub-Line’s failure to timely raise that defense, the court’s ruling, and Sub-Line’s
agreement, Sub-Line cannot now raise the issue on a motion for remittitur and rely on the
statutory cap based on size. Rule 59 does not provide litigants a do-over when they missed their

awarded under this section, shall not exceed, for each complaining party–(1) in the case of a
respondent who has more than 14 and fewer than 101 employees in each of the 20 or more
calendar weeks in the current or preceding calendar year, $50,000. . . .”
24

opportunity to raise matters prior to trial or the jury verdict causes them to regret the positions
they took. Not only has the court already ruled on this issue, but Sub-Line is judicially estopped
from invoking the statutory caps because of the inconsistent position that it has taken in the
pretrial order and at the final pretrial. See Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 128586 (11th Cir. 2002).
In any event, this issue is not one appropriately addressed pursuant to Rule 59, because it
does not involve newly-discovered evidence; manifest errors of law or fact; or an intervening
change in controlling law. For all of these reasons, the court WILL DENY the Rule 59(e) motion
to the extent that it request the application of statutory caps based on the size of the company and
the number of employees.
As an alternative ruling, the court FINDS to the extent, if any, that the statutory cap
based on size applies to and limits the punitive damage award for the federal claims, remittitur is
still not warranted. The jury’s verdict clearly reflects that it awarded compensatory and punitive
damages under federal and state law claims, and “[t]he federal cap does not limit damages under
parallel state laws . . . .” See Bradshaw v. Sch. Bd., 486 F.3d 1205, 1208 (11th Cir. 2007) (citing
42 U.S.C. §§ 2000e-7 and 2000h-4).
Sub-Line also argues that the court should reduce the Title VII punitive damages award,
because Sub-Line’s actions do not warrant punitive damages, and, specifically “[t]he ratio of
punitive damages to actual harm allegedly inflicted is much too large to support the punitive
damage award.” This court does not agree.
As Ms. Whitford points out in her response, “the ratio of 3.1 to 1 ($100,000 punitive
damages to $31,956 in compensatory damages and lost wages) is well within the range [that the
25

Eleventh Circuit and Supreme Court of the United States have found acceptable.]” (Doc. 64, at
16 (citing State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003); Goldsmith v.
Bagby Elevator Co., 513 F.3d 1261, 1283 (11th Cir. 2008)). The court FINDS legally sufficient
evidence to support the punitive damages award based on evidence that Ms. Whitford
complained to management about Mr. Connison’s sexual harassment of her, including conduct
supporting her state claims for invasion of privacy and assault and battery; evidence of SubLine’s conduct in failing to investigate her complaints and failing to take adequate corrective
action to protect her; and evidence that Sub-Line terminated Ms. Whitford when she continued to
complain about Mr. Connison’s conduct.
The court WILL DENY Sub-Line’s alternative request for a remittitur.
C. Motion for a New Trial
Sub-Line’s motion for new trial, another motion in the alternative, is brought pursuant to
Rule 59(a)(1)5 of the Federal Rules of Civil Procedure, which provides: “The court may, on
motion, grant a new trial on all or some of the issues—and to any party as follows: (A) after a
jury trial, for any reason for which a new trial has heretofore been granted in an action at law in
federal court . . . .” See Fed. R. Civ. P. 49(a)(1)(A) (2009). Sub-Line’s motion is based on an
evidentiary ruling, asserting that the introduction of Mr. Connison’s Facebook posts improperly
prejudiced the jury against him. Sub-Line does not point this court to any controlling federal
court ruling granting a new trial based upon a district court’s analogous discretionary ruling on an
evidentiary matter. However, in Coquina Inv. v. TD Bank, N.A., the Eleventh Circuit addressed

5

Although the motion itself states that it is brought pursuant to Rule 59(b), that rule
merely provides the deadline to file the motion, not the grounds for filing.
26

asserted evidentiary errors and explained that, “[i]n order to justify granting a new trial, an error
must have affected ‘substantial rights’ or caused ‘substantial prejudice’; otherwise, the error is
harmless.” 760 F.3d 1300, 1309 (11th Cir. 2014) (citing Peat, Inc. v. Vanguard Research, Inc.,
378 F.3d 1154, 1162 (11th Cir. 2004)).
Sub-Lines states generally that the court should have excluded the Facebook posts as
irrelevant under Rules 401, 404(b)(1) and 403 of the Federal Rules of Evidence, and that the
posts “enflamed the jury’s passion.” This general statement of prejudice–without further
explanation, a general assertion of irrelevancy–without specifying why the posts are irrelevant,
and the general invocation of three evidentiary rules–without addressing how the introduction of
the Facebook posts violates them, is unhelpful. Sub-Line raises the issue but fails to explain,
perhaps expecting the court to develop the argument on Sub-Line’s behalf; however, the court’s
role is not to function as an advocate for either side and is certainly not to develop arguments
against its own rulings.
The court CONFIRMS its discretionary rulings pursuant to Rules 401, 403, and 404. The
court FINDS that no error existed, and, even assuming arguendo that this evidentiary ruling was
error, the alleged error affected no substantial rights and did not cause substantial prejudice.
Therefore, the court WILL DENY the alternative motion for new trial.
Dated this 21st day of July, 2017.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

27

EXHIBIT “A”
The following are examples of Ms. Whitford’s testimony at trial about Mr. Connison’s sexual
harassment:.
Touching and other Physical Actions:
•
Ms. Whitford was speaking to a female co-worker about body changes after pregnancy,
including a decrease in size of her breasts, when Mr. Connison came from the other side
of a wall, grabbed her breast and said, “I’ll check for you.”
•
“It didn’t matter how far apart I was from the counter or from whatever obstruction we
were beside, he would make a point to bump into me, whether it be by my chest to make
sure he touched my breasts, or there was a time he was walking by me and stopped, said
something and rammed his penis in my butt . . . .”
•
“He grabbed my butt on several occasions, multiple occasions, in front of customers,
outside the store, inside the store.”
•
“He stuck his hand into the inside of my pants holding onto my belt and pulled me
towards him and told me that I should give him a try.”
•
When she was alone in the store with Mr. Connison, “[t]he touching would get worse
versus him just walking by and, grazing my butt or whatever, he would be ramming me
with his front side. He would be smacking me on my ass. It was grabbing my boobs from
behind.”
•
On October 12, 2014, Ms. Whitford was in the cooler and Mr. Connison blocked the
doorway, moved close to her so that they were standing nose-to-nose, and said, “you’re
not getting out until I get what I want.” Ms. Whitford panicked, forced her way out of the
cooler, and got away from him when he tried to grab her. Mr. Connison walked out the
back of the store, slammed the door in an angry manner, and then came back in the store,
told her he was leaving, and left the store before the end of his shift without uttering
another word.

•

•
•

•
•
•

Sexual Comments:
When Ms. Whitford asked a customer which size of sub sandwich he wanted—a six-inch
or a twelve inch, Mr. Connison said to Ms. Whitford: “I have more than twelve inches for
you.”
When Ms. Whitford was discussing Subway sauce with customers present, Mr. Connison
“said that he heard that his was spicy, asked me if I wanted to try it.”
When Ms. Whitford “bending over to put something in the cooler and didn’t realize he
was, of course, behind me and said if I bend over a little bit further, he could see my lips
from behind.”
Mr. Connison said, “referencing my body, saying I’d tap that.”
“[I]n front of customers, he had made the motion with sticking his tongue to his cheek . . .
kind of like a blow job, guess, and said ‘I bet you can suck a dick.’”
Mr. Connison referred to parts of women’s bodies at work all the time, using vulgar terms
such as “tits or chachas pussy.”
28

•

•

•
•

•

•

•
•

When Ms. Whitford gave Mr. Connison a ride home at his request during work hours, he
invited her inside, and, when she declined, “he informed me to come in, I could get paid
for being on top.”
Mr. Connison propositioned Ms. Whitford one day the two of them were alone in the
store during work hours, and he locked the front door and asked her to go in back with
him where the cameras could not see what they were doing.
Mr Connison said “that he had only been in relationship with one other person at Subway,
but he would make an exception with me. . . .”
Mr. Connison telephoned Ms. Whitford when she was working one night with Kendra
Dean, and said “do you want me to come back, we could have a threesome.” When she
said no, he asked, “What about a twosome?”
Mr. Connison telephoned her another time at work when she was shutting the store down,
and “he told me that he was in the bath–he was taking a bath and he was thinking about
me and he was getting rock hard.”
When Ms. Whitford and a female co-worker thought they were alone, they were
discussing about the birth of Ms. Whitford’s daughter and needing vaginal stitches, and
“James came around the corner and said, ‘I bet that pussy’s tight.’”
Mr Connison asked whether she and her ex-husband “were fucking.”
Mr. Connison “said that all his other girlfriends always come back for more or something
like that and I should give him a try.”

29