Howell v. Baptist Health System Inc et al

Filing 50

MEMORANDUM OPINION re 38 Motion for Summary Judgment; for reasons stated within Baptist's Motion for Summary Judgment, 38 , is GRANTED as to Howell's Title VII claim for sexual harassment and DENIED as to her other claims; Howell's Title VII claim for sexual harassment is DISMISSED with prejudice. Signed by Judge Abdul K Kallon on 10/11/2017. (KBB)

FILED
2017 Oct-11 AM 10:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AUDREY LYNN HOWELL,

)
)
Plaintiff,
)
)
vs.
)
BAPTIST HEALTH SYSTEM, INC., )
)
et al.,
)
)
Defendants.

Civil Action Number
2:16-cv-00007-AKK

MEMORANDUM OPINION
Audrey Lynn Howell brings this case against Baptist Health System, Inc.
(“Baptist”)1 under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U.S.C. § 2000e et seq. She alleges that Baptist required her to work
in an environment tainted by pervasive sexual harassment and retaliated against her
for lodging complaints related to that harassment. Howell also brings two state
law claims against Baptist—assault and battery and negligent supervision. Baptist
has filed a motion for summary judgment on all of Howell’s claims, doc. 38, and
that motion is now fully briefed, docs. 42; 45; 48, and ripe for review. Based on a
thorough examination of the parties’ briefs and the record, the court finds that
summary judgment in favor of Baptist is due to be granted with respect to
1

Because of Baptist’s corporate structure, another business entity is also named as a defendant.
However, the same legal analysis is applicable to both entities so, for ease of reference, this court
will refer to Baptist as the sole defendant in the case.
1

Howell’s Title VII hostile work environment claim, and denied as to the Title VII
retaliation claim and the state law claims.
II. Standard of Review
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in [her] favor.” Id. at 255. Indeed, it is explicitly not
the

role

of

the

court

to

“weigh

conflicting

evidence

or

to

make credibility determinations.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,
742 (11th Cir. 1996); see also Anderson, 477 U.S. at 255 (explaining
“[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge”).
However, “mere conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v.
Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Nor will “a . . . ‘scintilla of
evidence in support of the nonmoving party . . . suffice to overcome a motion for
2

summary judgment.’” Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016)
(quoting Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004)). Instead,
if “the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for trial,’” and summary judgment is
appropriately granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (citation omitted).
III. Facts
The following facts reflect an assessment of the record in the light most
favorable to Howell. Howell worked for Baptist for over 25 years in various
administrative capacities. Doc. 45 at 1. In November 2013, while serving as the
clinic manager for Baptist’s clinic in Gardendale, Alabama, Howell began working
several days each week at the Baptist clinic in Pinson, Alabama. Id. at 1–2; Doc.
42 at 5. Baptist eventually offered Howell a position as clinic manager at the
Pinson location. Doc. 42 at 5. Although Howell initially declined this offer, she
went on to accept the position in January 2014. Id. at 6. As clinic manager in
Pinson, Howell “directly managed all clinic staff except for physicians.” Id.
Shortly after starting her new position, Howell was confronted with poor
morale among the staff along with a variety of other problems. Doc. 39-55 at 5–
10, 19–21.

Howell’s testimony reveals that virtually all of these problems

pertained to staff-related difficulties with implementing various Baptist
3

administrative policies, dealing with challenging hourly requirements, and working
with one of the clinic physicians, Dr. Walter Wilson. Id.; Doc. 39-21 at 1–2. Dr.
Wilson allegedly flaunted Baptist procedures at every turn, micro-managed the
staff, and frequently used profanity in the office. Id. Although Dr. Wilson had no
direct supervisory authority over Howell, she alleges that he had the final say
regarding employment and disciplinary decisions in the clinic, and that he operated
the Pinson facility as his own private business with little oversight from Baptist.
Docs. 39-55 at 7–9, 11, 18–19; 44-1 at 3. Howell also alleges that Dr. Wilson
frequently ignored Baptist’s rules and guidelines in his practice, and that he
instructed his staff to do the same. Doc. 39-55 at 11, 19.2
A. Sexual Harassment in the Workplace
Almost all of the facts supporting Howell’s allegations of sexual harassment
stem from a single incident in March of 2014. Doc. 42 at 7. On the day of the
incident, a front-office employee purportedly tricked Howell into a private, closed
door meeting with Adam Goldweber, an outside pharmaceutical sales
representative and, allegedly, a person who had previously engaged in sexually
harassing behavior at the Pinson clinic. Doc. 39-55 at 16–17. In his meeting with
Howell, Goldweber, who Howell asserts was a friend of Dr. Wilson’s, made a
2

Howell points out that her attempts to enforce corporate policy were met with significant
resistance at the Pinson clinic. Indeed, she asserts that she was frequently called “the bitch,” or
referred to as “the biggest bitch in town” by both staff and Dr. Wilson based on her attempts to
follow Baptist’s workplace guidelines. Doc. 39-55 at 10, 28.
4

series of inappropriate comments including referring to a “lesbian affair”
conducted by a previous clinic manager and claiming that he was “a very
controlled lover . . . [who] could rock [Howell’s] world.” Id. at 16.
Howell understandably became extremely uncomfortable and ended the
conversation immediately. She then reported the encounter to Dr. Wilson, who
purportedly told her not to complain about the incident because of his friendship
with Goldweber. Id. at 16–17. Dr. Wilson also took the opportunity to make a
series of inappropriate comments including: (1) a reference to the previous clinic
manager having sex with Goldweber; (2) a reference to the previous clinic
manager’s “camel toe;” and (3) looking down Howell’s blouse while telling
Howell she should appreciate men who looked at her breasts because “humans are
the only people that have sex looking at each other.” Id.; Doc. 45 at 9. Bizarrely,
Dr. Wilson also gave Howell a “head noogie,” a term the parties use to refer to Dr.
Wilson’s practice of grabbing another person’s head and pressing his forehead
against their face. Docs. 39-55 at 25; 45 at 9. Including this incident, Howell
asserts that she received five “head noogies” from Dr. Wilson. Doc. 39-55 at 25.
In addition to the Goldweber episode, Howell points to one other significant
harassing event. Purportedly, Dr. Wilson summoned Howell into his office and
asked her to pick out her body type in an open Sports Illustrated swimsuit
magazine on his desk. Id. at 18. Although Howell declined to do so, Dr. Wilson
5

attempted to pressure her into accepting his request by noting which body type he
thought Howell possessed and telling her “[y]ou’ve got the body . . . just pick it
out.” Id.; Doc. 45 at 10. At the conclusion of this interaction, Dr. Wilson gave
Howell another “head noogie,” apparently in an attempt to lighten the mood. Doc.
39-55 at 18.
Howell further alleges that Dr. Wilson twice called her into his office so that
he could look at her butt, id. at 37, that he routinely cursed and demeaned women
in her presence, and that he instructed her to only send pharmaceutical sales reps to
meet with him if they were at least a 34C in bra size. Id. at 6, 8–11, 37, 43; Docs.
44-2 at 2; 45 at 3. Additionally, Howell claims that Dr. Wilson posted both
sexually explicit and racially derogatory images on his office door. Doc. 39-55 at
22–23. Howell asserts that she promptly reported all of these incidents to her
supervisors in Baptist’s corporate office, as well as to a third party human
resources consultant working with the staff at the Pinson clinic. Id. at 18–19, 22,
36.
B. Retaliation
In addition to the alleged incidents of sexual harassment, Howell further
avers that Dr. Wilson made a number of racially derogatory statements which she
also reported to Baptist. These comments mostly involved Dr. Wilson’s adamant
opposition to the hiring of African-Americans.
6

In one instance, Dr. Wilson

explained that he would not “have a mother fucking [racial epithet] working here.”
Id. at 11. Dr. Wilson repeated this racial epithet in several other contexts around
the office, and he maintained a bulletin board by his office which included a
derogatory cartoon of President Barrack Obama. Id. at 8–9, 22. After Howell
reported these highly offensive remarks to Baptist, Dr. Wilson confronted Howell
and raised his voice at her stating “Let me make this goddamn clear. I hire my
own people. I’ve told you that. Not them . . . I am pissed that you have made that
complaint. . .

I hire my own goddamn mother fucking people.”

Id. at 18.

Allegedly Dr. Wilson also informed Howell that she would lose her job if she
continued her complaints. Id.
Similarly, after Dr. Wilson learned that Howell had reported Goldweber to
Baptist, he confronted her twice in her office telling her he was “pissed” she had
chosen to report the incident despite his request that she not do so. Id. at 37. He
also purportedly instructed Howell to “get [her] head out of corporate’s ass.” Doc.
39-58 at 32. These allegedly retaliatory actions replicated a pattern of behavior in
which Dr. Wilson belittled Howell and her adherence to Baptist’s rules and
regulations by, among other things, labelling her “the biggest bitch” for attempting
to follow proper workplace protocol. Doc. 39-55 at 10, 28.
All of these events occurred in the roughly three and a half months between
when Howell began working full time at the Pinson clinic and when she took
7

medical leave in May 2014. Doc. 44-2 at 2. During her leave, Howell continued
to communicate with Baptist regarding the conditions in Pinson. Doc. 42 at 14–19.
Based on these conversations, Baptist administrators met with Dr. Wilson and
informed him that Baptist would not renew his contract. Id. at 18–19; Doc. 45 at
18. Howell never returned to work following her medical leave. Doc. 42 at 14.
IV. Discussion
Howell’s complaint primarily focuses on her Title VII allegations regarding
both sexual harassment and the retaliation she allegedly suffered when she reported
Dr. Wilson’s racially discriminatory conduct to Baptist.

She also raises two

parasitic state law torts, assault and battery and negligent hiring, training,
supervision, and retention linked to Dr. Wilson’s inappropriate workplace
behavior. This court addresses each of Howell’s claims in turn.
A. Title VII Hostile Work Environment
To prevail on her hostile environment claim, Howell must show
(1) that . . . she belongs to a protected group; (2) that [she] has been
subject to unwelcome sexual harassment . . . ; (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 liable.

8

Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en
banc) (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en
banc)).
Although Title VII clearly provides protection against sexual harassment,
the Supreme Court has cautioned courts against construing it as a “federal ‘civility
code.’”

Mendoza, 195 F.3d at 1245 (quoting Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 81 (1998)). Indeed, “not all workplace conduct that may
be described as ‘harassment’ affects a ‘term, condition, or privilege’ of
employment within the meaning of Title VII.” Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 67 (1986). Thus, “‘simple teasing,’ . . . offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment.’” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998) (internal citation omitted).

Instead, sexual

harassment must be “sufficiently severe or pervasive ‘to alter the conditions of [the
victim’s] employment and create an abusive working environment.’” Meritor, 477
U.S. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).
The inquiry into whether sexual harassment has risen to the level required to
alter the conditions of employment includes both a subjective and an objective
component. Mendoza, 195 F.3d at 1246. Thus, the victim of harassment must
“subjectively perceive the environment to be abusive” and, objectively, the work
9

environment must qualify as one that “a reasonable person would find hostile or
abusive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). This inquiry is
conducted in light of the totality of the circumstances and includes a variety of
considerations including “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee's work performance.” Id.
at 23.
Baptist primarily argues that Howell has failed to establish that the alleged
harassment was objectively severe or pervasive.

That is, Baptist claims that

Howell has failed to demonstrate, in light of the totality of the circumstances, that
her working environment was abusive enough to alter the terms and conditions of
her employment. Based on this record, the court agrees.
As a threshold matter, the court reiterates that to qualify as sex or gender
based harassment, the harassing behavior must “have been based on the sex of the
employee.” Mendoza, 195 F.3d at 1245. Thus, only incidents based on Howell’s
sex are appropriately taken into account when assessing her hostile environment
claim.

Although undoubtedly bizarre, Howell has not put forward evidence

indicating that Dr. Wilson’s practice of giving Howell “head noogies” was because
of her status as a woman or that these “intimidating” “head noogies” were sexual
in nature.

Accordingly, these instances, as well as Dr. Wilson’s racially
10

discriminatory remarks, have no bearing on whether Howell’s sexually hostile
environment claim survives summary judgment.3
A fair reading of Howell’s deposition testimony suggests strongly that her
primary workplace concerns relate to the general atmosphere of dysfunction at the
Pinson clinic rather than to targeted sexual harassment.

Howell spends

considerable time discussing the lack of training on standard Baptist administrative
and billing practices provided to the staff and doctors and the lack of interest
employees exhibited in following Baptist guidelines. Doc. 39-55 at 5–11, 19–21.
Howell also repeatedly emphasizes the lack of support Baptist provided to her
efforts to increase compliance with corporate policy from clinic staff and the
“closed social system” that existed in Pinson during her period of employment
there. Id. at 7, 9–10, 20–21, 28; Doc. 39-21 at 1–2. Although Howell’s efforts to
address these workplaces difficulties were laudable and the circumstances she
experienced in the clinic were difficult and undoubtedly stressful, these issues are
3

Howell asserts that the court should still consider the “head noogies” and racial comments as
part of her hostile environment claim because the Eleventh Circuit recognizes a Title VII action
for a “retaliatory hostile environment.” This argument confuses two distinct causes of action. A
hostile environment claim based on sex harassment requires proof that “the harassment [creating
the hostile environment was] based on the sex of the employee.” Mendoza, 195 F.3d at 1245.
On the other hand, when raising a “retaliatory hostile environment claim,” there must be a
“causal link” between the protected activity and the adverse employment action, or hostile work
environment. Gowski v. Peake, 682 F.3d 1299, 1311–12 (11th Cir. 2012). That is, the plaintiff
must demonstrate that the hostile environment was created for retaliatory purposes. Each claim,
therefore, contains a distinct causal component requiring a particularized connection between
some protected characteristic, either based on status or activity, and the hostile environment.
Here, as discussed, Howell has provided no basis for a court to conclude the “head noogies”
were based on Howell’s protected status as a woman. So, as discussed infra, this court considers
those actions solely in the retaliation context.
11

not legally actionable concerns under Title VII. Stated differently, that an office is
not well-run or efficient has no bearing on whether an employer has violated an
employee’s federally protected civil rights. See, e.g., Davis v. Town of Lake Park,
245 F.3d 1232, 1244 (11th Cir. 2001) (remarking that “Title VII is not designed to
make federal courts ‘sit as a super-personnel department that reexamines an
entity’s business decisions.’”) (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d
1466, 1470 (11th Cir. 1991)).
However, Howell does point to the following instances of sexual harassment
to support her claim: the Goldweber incident and the inappropriate comments Dr.
Wilson made when Howell reported the event to him, the incident that occurred
when Dr. Wilson attempted to pressure Howell into selecting her body type from
an open Sports Illustrated swimsuit magazine, Dr. Wilson’s practice of using
language physically objectifying women, his practice of posting “sexual-type”
pictures on his officer door, and the fact that Dr. Wilson and the office staff
sometimes referred to Howell as a “bitch” based on her practice of seeking
compliance with Baptist corporate policies. Docs. 39-55 at 6, 8–11, 16–18, 28; 442 at 2. Howell does not allege that Dr. Wilson or anyone else ever touched in a
sexually suggestive manner.
The actions alleged by Howell are disturbing and clearly inappropriate, but,
as the Eleventh Circuit has repeatedly made clear, “Title VII is not a civility code,
12

and not all profane or sexual language or conduct will constitute discrimination in
the terms and conditions of employment.” Reeves, 594 F.3d at 807. Indeed,
“Title VII does not prohibit profanity alone, however profane. It does not prohibit
harassment alone, however severe and pervasive.

Instead, Title VII prohibits

discrimination, including harassment that discriminates based on a protected
category such as sex. . . [a]n equal opportunity curser does not violate [the]
statute.” Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301–02 (11th
Cir. 2007). Moreover, the harassment in question must be so severe as to support a
conclusion that the “workplace is permeated with ‘discriminatory intimidation,
ridicule, and insult.’” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 65).
Here, Howell has simply not alleged sufficient conduct to meet this difficult
evidentiary threshold.
First, Howell does not suggest that she was touched inappropriately, or that
anyone even attempted to touch her in an inappropriate manner. Nor does she
claim that she was subjected to a deluge of sexually suggestive comments or
propositions for sex. Instead, Howell specifically indicates she was exposed to
sexually risqué comments on three or four occasions over about four months
making the purported harassment she experienced too infrequent to establish an
objectively hostile environment. See, e.g., Guthrie v. Waffle House, Inc. 460 F.
App’x 803, 807 (11th Cir. 2012) (explaining that “a few dozen comments or
13

actions . . . spread out over a period of eleven months,” was insufficient evidence
of frequency); Mendoza, 195 F.3d at 1242, 1247–48 (finding that frequency “[was]
for the most part lacking” when considering four concrete instances of unwanted
harassment and “constant” following and “obvious” staring over an eleven month
period). Howell has made no showing that she was harassed on a daily or even
weekly basis,4 and her more general allegations simply reflect the sort of sporadic,
boorish behavior that the Supreme Court has explained does not support a Title VII
claim. See Faragher, 524 U.S. at 788 (explaining that the severe and pervasive
element of hostile environment claims is designed to filter out the “ordinary
tribulations of the workplace, such as the sporadic use of abusive language,
gender-related jokes, and occasional teasing”) (quotation omitted).
Second, the conduct identified by Howell does not rise to the level of
conduct that the Eleventh Circuit has previously identified as sufficiently severe to
sustain a hostile environment claim. See, e.g., Dar Dar v. Associated Outdoor
Club, Inc., 248 F. App’x 82, 86 (11th Cir. 2007) (finding that two instances of
employee’s touching the plaintiff’s buttocks and two risqué comments did not
establish a hostile working environment); Guthrie, 460 F. App’x at 804, 807
(finding harasser grabbing the plaintiff’s “butt two to five times” and several other
4

See Reeves, 594 F.3d at 812 (noting the frequency component of the hostile environment
inquiry was satisfied because the plaintiff’s co-workers made obscene and abusive comments on
a daily basis); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002) (finding
frequency sufficient when plaintiff faced “ethnic slurs . . . three to four times a day”).
14

instances of making vulgar, sexually explicit comments fell short of establishing a
hostile working environment); Mendoza, 195 F.3d at 1247–53 (holding that a
supervisor rubbing his hip against the plaintiff while touching her shoulder and
smiling, “constantly” staring and following the plaintiff, and making “sniffing”
sounds while looking at plaintiff’s groin was insufficiently severe to establish a
hostile environment claim). But see Hulsey v. Pride Rests., LLC, 367 F.3d 1238,
1248 (11th Cir. 2004) (holding sufficient severity existed for a hostile environment
claim when the relevant conduct included “many direct as well as indirect
propositions for sex,” including “following [the plaintiff] into the restroom, and
repeated attempts to touch her breasts, place his hands down her pants, and pull off
her pants,” as well as “enlisting the assistance of others to hold [the plaintiff] while
[attempting] to grope her”); Johnson v. Booker T. Washington Broad. Serv., Inc.,
234 F.3d 501, 509 (11th Cir. 2000) (holding harasser’s behavior was severe
because he gave “[the plaintiff] unwanted massages, standing so close to [her] that
his body parts touched her from behind, and pulling his pants tight to reveal the
imprint of his private parts”).
As distasteful as the conduct alleged here is, it amounts to “the sporadic use
of abusive language . . . and occasional teasing,” conduct that is not actionable
under Title VII. Faragher, 524 U.S. at 788. In short, the harassment Howell
alleges she endured is factually much closer to Mendoza or Guthrie than the types
15

of repeated sexual touching and vulgar propositions involved in cases like Hulsey
and Johnson.
Perhaps recognizing the factual shortcomings of her allegations, Howell
attempts to revive her sexual harassment claim by suggesting that she felt
physically threatened and humiliated based on Dr. Wilson’s temper and his vulgar
language. Doc. 39-55 at 6, 17, 22–24, 26. However, Howell has not presented any
evidence to establish that Dr. Wilson’s temper and vulgar language was
specifically directed at her based on her sex.

See Oncale 523 U.S. at 80

(explaining the critical inquiry in claims of sexual harassment is “‘whether
members of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed’” not merely that
words are used in the workplace that may have a sexual connotation) (quoting
Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). Indeed, it is established that the
“mere utterance of an . . . epithet which engenders offensive feelings in a[n]
employee, does not sufficiently affect the conditions of employment to implicate
Title VII.” Harris, 510 U.S. at 21 (internal citations and quotations omitted); see
also Oncale, 523 U.S. at 81 (stating the “prohibition of harassment on the basis of
sex requires neither asexuality nor androgyny in the workplace; it forbids only
behavior so objectively offensive as to alter the ‘conditions’ of the victim’s
employment”). While Howell may have felt physically threatened and humiliated,
16

she has failed to establish that this conduct was based on her sex, or that it was
severe enough to have objectively altered the conditions of her employment.
Accordingly, in light of controlling Eleventh Circuit precedent, Howell has
failed to put forward enough evidence to create an issue of material fact regarding
whether she was subjected to objectively “severe or pervasive” harassment. Thus,
summary judgment is due on Howell’s hostile environment claim under Title VII.
B. Title VII Retaliation
Title VII provides a remedy for “employer retaliation on account of an
employee’s having opposed, complained of, or sought remedies for, unlawful
workplace discrimination.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,
2522 (2013) (citing 42 U.S.C. § 2000e–3(a)). To establish a prima facie case of
retaliation, the plaintiff is required to show that: “(1) she engaged in an activity
protected under Title VII; (2) she suffered an adverse employment action; and (3)
there was a causal connection between the protected activity and the adverse
employment action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
“[A] materially adverse action ‘means [an action that] well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.’” Id. at
974 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Further, Title VII retaliation claims require “proof that the desire to retaliate was

17

the but-for cause of the challenged [materially adverse] employment action.”
Nassar, 133 S. Ct. at 2528. 5
First, Baptist claims that Howell did not engage in any statutorily protected
activity.

According to Baptist, Howell’s reports of Dr. Wilson’s extremely

inappropriate, and as Baptist admits, illegal, racial comments do not qualify as
protected conduct because those comments were not directed towards Howell
because of her race. This contention is irrelevant because Howell also complained
about sexual harassment directed at her based on her sex. Doc. 39-55 at 36–37.
And, even if Baptist’s argument was potentially relevant here, it is inapposite.
Contrary to Baptist’s contention, the prima facie case for Title VII retaliation
claims does not require membership in a protected class. Instead, in contrast to
Title VII’s substantive anti-discrimination provision, its “antiretaliation provision
must be construed to cover a broad range of employer conduct.” Thompson v. N.
Am. Stainless, LP, 562 U.S. 170, 173 (2011).

Indeed, by its terms, the

antiretaliation provision of Title VII, § 2000e-3(a), prohibits retaliation “‘against

5

Baptist does not contest the existence of a direct causal link between the alleged retaliatory
conduct and any protected activity. And, Dr. Wilson’s own conduct reveals the existence of such
a link as Howell alleges that Dr. Wilson threatened her job and physically intimidated her after
stating he was angry about her complaints. Doc. 39-55 at18; 37; see Merritt v. Dillard Paper
Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (explaining that direct evidence is “‘evidence, which
if believed, proves [the] existence of [the] fact in issue without inference or presumption’”)
(quoting Rollins v. Techsouth, Inc., 833 F.2d 1525, 1528 n.6 (11th Cir. 1987)). Accordingly,
even if Baptist had presented evidence supporting a non-retaliatory basis for Dr. Wilson’s
actions, this court could not grant summary judgment in its favor. Id. at 1190–91.
18

any of [the employer’s] employees’ for engaging in protected conduct.” Id. at 174
(quoting Burlington, 548 U.S. at 62).
There is simply no warrant, statutory or otherwise, for requiring membership
in a protected class in order to state a claim based on retaliation. See, e.g., Johnson
v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (explaining “there is no
qualification on who the individual doing the complaining may be or on the party
to whom the complaint is made known . . .”). Therefore, because it is otherwise
undisputed that complaining to superiors regarding racially discriminatory
workplace practices qualifies as statutorily protected behavior under Title VII, see
Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998) (pointing out
that “reporting alleged race discrimination” counts as statutorily protected
conduct), Baptist’s argument fails as a matter of law. Accordingly, this court finds
that Howell’s alleged complaints regarding both racially discriminatory hiring
practices and sexual harassment qualify as protected conduct for purposes of her
Title VII retaliation claim.
Baptist next argues that Howell did not and could not have suffered an
adverse employment action based on her complaints. To support this contention,
Baptist asserts that Dr. Wilson lacked supervisory authority over Howell and, to
the extent any retaliation occurred, it was not serious enough to qualify as adverse

19

because it failed to deter Howell from reporting future discrimination. Neither
argument is convincing.
First, on this record, the argument that Dr. Wilson lacked supervisory
authority over Howell is a non-starter. Even accepting that Dr. Wilson was not
technically authorized to take disciplinary action against Howell pursuant to
Baptist’s guidelines, Howell has put forward sufficient evidence to indicate that the
Pinson clinic ran according to Dr. Wilson’s wishes. Specifically, Howell testified
that Dr. Wilson had the power to hire and discharge employees, that he frequently
ignored Baptist’s policies, and that he informed Howell repeatedly that he had
complete authority over clinic operations. Docs. 39-21 at 1–2; 39-55 at 11, 19, 37;
44-1 at 3; 44-2 at 2–3.
Significantly, Sandra Ash, an outside human resources consultant who
investigated employee complaints, prepared a report on the Pinson clinic further
reinforcing this conclusion. Doc. 42 at 9–10. The report indicated that Pinson
clinic employees thought that Dr. Wilson had the authority to ignore Baptist’s rules
and that his favored employees could freely “go over the line” with his blessing.
Doc. 39-21 at 1–2. Taken as a whole, and given the substantial evidence put
forward suggesting Dr. Wilson’s virtually unchecked power over the operation of
Pinson clinic, these incidents create an issue of material fact regarding whether Dr.

20

Wilson had disciplinary authority over Howell. In light of the procedural posture
of the case, this court must infer that he did, in fact, have such authority. 6
The argument that Howell did not suffer an adverse employment action
based on her protected conduct is equally unavailing. The law is clear that a
materially adverse employment action in this context is simply an action that “well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 548 U.S. at 68 (quotation omitted); see also Booth v.
Pasco Cty., 757 F.3d 1198, 1206–07 (11th Cir. 2014) (upholding a verdict in
which the jury found that forcing the plaintiffs to undergo fitness-for-duty
examinations based on the filing of EEOC complaints constituted “adverse
employment action” for retaliation purposes); Crawford, 529 F.3d at 973 n.13
(explaining that Burlington “strongly suggests that it is for a jury to decide whether

6

Baptist further asserts that Howell was not chilled or dissuaded from complaining about
discriminatory behavior because she actually raised further complaints regarding Dr. Wilson’s
behavior in addition to filing an EEOC charge after she left for her medical leave. Doc. 42 at 25.
Putting aside the fact that the inquiry is objective rather than subjective, this argument is
unpersuasive. At the time Howell made these additional complaints, she had already been out on
medical leave for more than a month. Id. at 14. Thus, she was logically no longer subject to Dr.
Wilson’s retaliatory behavior. And, in any event, the key question is not whether Howell was
herself dissuaded from making or supporting complaints of discrimination, but whether a
reasonable employee in her position would have been. See Foshee v. Ascension Health-IS, Inc.,
384 F. App’x 890, 892 (11th Cir. 2010) (stating the “materiality of the alleged adverse action is
judged by an objective standard”); Crawford, 529 F.3d at 974 (explaining that the Supreme
Court has instituted a purely objective standard of whether an action “‘well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination’” to judge materiality
in the Title VII retaliation context) (quoting Burlington, 548 U.S. at 68). As discussed infra,
Howell has made the necessary showing for her claim to survive at this stage of the proceeding.
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anything more than the most petty and trivial actions against an employee should
be considered ‘materially adverse.’”).
Here, there is evidence that after Howell complained about being sexually
harassed by Goldweber, Dr. Wilson confronted Howell in her office and noted that
he was “pissed” about the report. Doc. 39-55 at 37. Previously, Dr. Wilson had
also admonished Howell not to report the event, a confrontation during which he
administered a “head noogie” to Howell, a direct act of physical intimidation. Id.
at 16–17, 25.

Further, on at least three occasions following the Goldweber

incident, Dr. Wilson approached Howell in the hall and again administered a “head
noogie.” Id. at 25. A reasonable person could certainly take this behavior as Dr.
Wilson’s attempt to continue to physically intimidate Howell to prevent her from
raising additional complaints.
Likewise, after Howell reported racially discriminatory comments made by
Dr. Wilson, he approached her angrily telling her, in part, that he hired his “own
goddamn mother fucking people,” and threatening her with discharge if she did not
back off. Id. at 18. These repeated confrontations involving both direct physical
confrontation and fiscal threats, and coupled with Dr. Wilson’s purported
disciplinary authority over Howell, are sufficient to create a question of material
fact regarding whether a reasonable employee in Howell’s position would have

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been deterred from making future complaints.

Accordingly, Baptist’s motion

regarding Howell’s retaliation claim fails.
C. Assault & battery
Baptist does not deny that Dr. Wilson’s practice of giving “head noogies”
qualifies as both an assault and a battery under Alabama law. Doc. 42 at 29–30.
Similarly, there is no dispute that this behavior occurred on at least five occasions.
Id. at 29. Baptist argues only that there is no legal basis for subjecting it to liability
for Dr. Wilson’s conduct. Under Alabama law, an employer is only liable for the
intentional torts of its employees if: “‘[1] the agent’s wrongful acts were in the line
and scope of his employment; or [2] that the acts were in furtherance of the
business of [the employer]; or [3] that [the employer] participated in, authorized, or
ratified the wrongful acts.’” Potts v. BE & K Constr. Co., 604 So. 2d 398, 400
(Ala. 1992) (quoting Joyner v. AAA Cooper Transp., 477 So. 2d 364, 365 (Ala.
1985)).
Howell does not contend that Dr. Wilson’s acts were within the scope of his
employment, or that he gave the “head noogies” in furtherance of Baptist’s
business.

Howell instead argues that she presented sufficient evidence to

demonstrate that Baptist ratified Dr. Wilson’s behavior. To make this showing,
Howell must prove that Baptist “(1) had actual knowledge of the tortious conduct
of the offending employee and that the tortious conduct was directed at and visited
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upon the complaining employee; (2) that based upon this knowledge, the employer
knew, or should have known, that such conduct constituted . . . a continuing tort;
and (3) that the employer failed to take ‘adequate’ steps to remedy the situation.”
Mardis v. Robbins Tire & Rubber Co., 669 So. 2d 885, 889 (Ala. 1995) (citing
Potts, 604 So. 2d at 400).
Baptist argues that it could not have ratified Dr. Wilson’s practice of giving
“head noogies” because Howell only reported the admittedly tortious conduct in an
email dated June 12, 2014, after Howell had taken an extended medical leave of
absence from which she would never return. However, this contention ignores
Howell’s deposition testimony in which she asserts that she orally reported the
“head noogies” to Baptist personnel—Justin Barnett, the Director of Operations for
the Pinson clinic and Gillian Jackson, a Baptist employee working in the human
resources department.

Doc. 39-55 at 23–24.

Baptist’s policy on workplace

harassment specifically permits verbal complaints, so there is no indication that
Howell’s oral report failed to meet Baptist’s guidelines. Doc. 42 at 21. Therefore,
because for purposes of summary judgment “[t]he evidence of the non-movant is
to be believed,” Anderson, 477 U.S. at 255, Howell’s testimony is sufficient to
create an issue of material fact regarding whether Baptist had actual knowledge of
Dr. Wilson’s behavior. Consequently, Baptist’s motion on this claim fails.

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D. Negligent Hiring, Training, Supervision, and Retention

Under Alabama law, to support a claim of negligent hiring, training
supervision, “the allegedly incompetent employee [must have] committed a
common-law Alabama tort.” Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.
Supp. 2d 1314, 1320 (N.D. Ala. 2002) (citing Stevenson v. Precision Standard,
Inc., 762 So. 2d 820, 824 (Ala. 1999)).7 Because Alabama does not “recognize an
independent cause of action for sexual harassment,” Ex parte Carlisle, 26 So. 3d
1202, 1204 n.1 (Ala. 2009) (quotation omitted), Howell must allege additional
independent conduct capable of supporting an Alabama tort claim.

See, e.g.,

McCaulley v. Harvard Drug Grp., LLC, 992 F. Supp. 2d 1192, 1197–99 (N.D. Ala.
2014) (canvassing relevant case law to determine that claims for hostile work
environment and retaliation under Title VII require the allegation of independent
conduct supporting an Alabama tort claim in order to substantiate a claim of
negligent hiring, training, supervision, and retention).
Howell has done so.

Neither party disputes that the “head noogies”

constitute an independently actionable tort under Alabama state law, and it is the
assault and battery claim based on this behavior that underlies Howell’s claim of
7

The plaintiff must also show that the employer ratified this underlying tort based on actual
knowledge of the tortious conduct and “‘that based upon this knowledge, the employer knew, or
should have known, that [the offending employee’s] conduct constituted sexual harassment
and/or a continuing tort; and . . . that the employer failed to take ‘adequate’ steps to remedy the
situation.’” Stevenson v. Precision Standard, Inc., 762 So. 2d 820, 824 (Ala. 1999) (quoting
Potts, 604 So. 2d at 400).
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negligent hiring, training, supervision, and retention. As already discussed, Howell
has established an issue of material fact regarding whether Baptist ratified Dr.
Wilson’s tortious behavior, and therefore her claim for negligent hiring, training,
supervision, and retention survives Baptist’s motion.
V. CONCLUSION AND ORDER
For the foregoing reasons, Baptist’s Motion for Summary Judgment, doc.
38, is GRANTED as to Howell’s Title VII claim for sexual harassment and
DENIED as to her other claims. Howell’s Title VII claim for sexual harassment is
DISMISSED with prejudice.
DONE the 11th day of October, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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