Curry v. Koch Foods Inc et al
Filing
57
MEMORANDUM OPINION & ORDER- For the reasons stated within, Koch Foods' motion for summary judgment (Doc 43 ) is DENIED as to plt's "hostile work environment" sexual harassment claim; The motion is GRANTED as to plt's retalia tion, negligence, invasion of privacy, and assault claims, and those claims against Koch Foods are DISMISSED WITH PREJUDICE; Huddleston's motion for summary judgment (Doc 37 ) is DENIED. Signed by Magistrate Judge Staci G Cornelius on 3/20/19. (MRR, )
FILED
2019 Mar-20 AM 08:53
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRANDI CURRY,
Plaintiff,
v.
KOCH FOODS, INC., et al.,
Defendants.
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Case No.: 2:16-cv-02008-SGC
MEMORANDUM OPINION & ORDER1
This is a sexual harassment case brought by Brandi Curry against Koch
Foods, Inc., and Alex Huddleston. (Doc. 1). Against Koch Foods, Curry asserts
claims for “hostile work environment” sexual harassment in violation of Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.; retaliation
in violation of Title VII and 42 U.S.C. § 1981; and state law negligence. (Id. at 89, 11, 13). Against Huddleston, Curry asserts state law claims for invasion of
privacy and assault. (Id. at 12-13). Additionally, Curry seeks to impose liability
on Koch Foods for Huddleston’s intentional torts.
(Id.). Pending before the
undersigned are motions for summary judgment filed by Koch Foods and
Huddleston. (Docs. 37 & 43). For the reasons discussed below, Koch Foods’
1
The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 16).
motion is due to be denied in part and granted in part, and Huddleston’s motion is
due to be denied.
I. FACTS2
A. Background
Curry was hired by Koch Foods on September 4, 2014, to work as a General
Laborer at its Ashland, Alabama poultry processing plant and assigned to the
evisceration department in November 2014.
(Doc. 45-1 at 18-19).
She was
promoted to the position of Inspector Helper in that department on June 2, 2015.
(Id. at 19). An Inspector Helper is a Koch Foods’ employee who works next to an
employee of the federal government known as a United States Department of
Agriculture Inspector (“USDA Inspector”) on a production line at the plant. (Id. at
21-23). From one side of a stand, the USDA Inspector inspects birds coming down
a line and signals to the Inspector Helper on the other side of the stand which birds
to mark for trimming or send to “washout.” (Id. at 22-23, 32-33, 65; Doc. 46-2 at
119). Koch Foods’ job description for Inspector Helpers states these employees
“follow the government inspector’s instructions to properly mark and/or pull below
standard birds from the processing line.” (Doc. 46-2 at 119). Koch Foods cannot
run its production lines without USDA oversight. (Doc. 45-1 at 22). In both her
2
The following facts are undisputed, unless otherwise noted. They are viewed in the light most
favorable to Curry, as the non-movant, with Curry given the benefit of all reasonable inferences.
2
position as a General Laborer and an Inspector Helper, Curry worked the third
shift, which ran from approximately 8:43 P.M. to 5:45 A.M. (Id. at 18-19, 21).
During the time in question, Huddleston was a USDA Inspector assigned to
Koch Foods’ Ashland plant. (Doc. 45-2 at 5). He worked the first shift, which ran
from approximately 5:45 A.M. to 2:15 P.M. (Id. at 11). However, he sometimes
began his shift approximately 30 minutes early. (Id. at 5, 11). When he did so, his
shift overlapped with Curry’s shift for approximately 30 minutes. (Id. at 12; Doc.
45-1 at 21, 24). Both as a General Laborer and as an Inspector Helper, Curry
sometimes worked alongside Huddleston when he began his shift early. (Doc. 451 at 21, 24-25).
Curry testified she initially got along well with Huddleston. (Id. at 25). A
few weeks after Curry first worked with Huddleston, he asked her whether she was
in a relationship with a female Koch Foods’ employee named Brandy. (Id. at 2526). This question did not bother Curry. (Id. at 26). Huddleston also told Curry
he had undergone a surgery on his “private area,” his “dick didn’t work,” he
“didn’t have anything going on [] down there,” and he loved oral sex. (Id. at 26,
59).3 These comments did not make her uncomfortable. (Id. at 26-27).4 Curry felt
3
With respect to the offensive language quoted in this opinion, the undersigned adopts the
perspective expressed by the Eleventh Circuit in Reeves v. C.H. Robinson Worldwide, Inc., 594
F.3d 798, 803 (11th Cir. 2010) (“We recite the profane language that allegedly permeated this
workplace exactly as it was spoken in order to present and examine the social context in which it
arose. We do not explicate this vulgar language lightly, but only because its full consideration is
3
like Huddleston was just a friend sharing this information with her. (Id. at 26).
Curry testified Huddleston began making inappropriate comments after he heard
she was in a relationship with a female Koch Foods’ employee named Dee Dee.
(Id. at 26).
B. Huddleston’s Comments and Conduct Between September 2014 and
November 2015
Curry testified that between the time she was hired and the time she was
promoted to the position of Inspector Helper, Huddleston made the following
unwelcome comments to her:
He asked her whether her “pussy ha[d] a smell,” told her she didn’t have a
“smell down there,” and told her his wife “has smell when y’all do that little
thing y’all do.” (Id. at 27, 57). She told him that was her personal business
and that what she had going on in her bedroom was her business. (Id. at 27).
When he saw Dee Dee, a female Koch Foods’ employee with whom Curry
was in a relationship, he told Curry she and Dee Dee could use some help in
the bedroom and that “[he] bet [he] could eat [her] pussy better than Dee
Dee.” (Id. at 26-28). During this encounter, he simulated oral sex with his
tongue. (Id. at 45). She asked him not to say that and to please stop talking
to her like that. (Id. at 26).
essential to measure whether these words and this conduct could be read as having created ‘an
environment that a reasonable person would find hostile or abusive.’”).
4
Curry does not object to Koch Foods’ statement of undisputed factS that she did not think these
comments were inappropriate. However, in response to Huddleston’s statement of undisputed
facts, Curry claims she testified she did think these comments were inappropriate. (Doc. 50 at
7). To the extent this is a disputed fact, it is immaterial.
4
He told her she would rebuff him at first like a black female named Brenda
but that she would “fold,” stating he “turned [Brenda] out to the point where
she came and knocked on [his] door,[] knowing [he] was married.” (Id. at
27).
He asked her why she was a lesbian several times and told her he had told
his niece who was a lesbian that “it is absolutely nasty.” (Id. at 28). Curry
said, “[H]ow about we just don’t even talk about it period.” (Id.).
He asked her whether she had any pictures and told her he could give her his
e-mail address so that she could send pictures to him. (Id.). She told him
she would not do that. (Id.).
He told her a white Koch Foods’ employee named Cindy had adopted one or
more children and needed help and that he was going to help Cindy. (Id.)
Later, he told her he was not going to help Cindy because Cindy “[was] not
talking about opening her legs.” (Id.).
After Curry asked him why he continued to talk to her “like that,” he told
her that she, like Brenda, would “fold.” (Id.).
Curry testified that between June 2015 and November 2015, Huddleston
engaged in the following unwelcome conduct:
After Curry told Huddleston that his wife was beautiful – Huddleston had
shown a picture of his family to Curry – Huddleston said, “[N]ot as
beautiful as you, I could just reach over there and bite that lip.” (Id. at
28-29).
In the process of reaching to get a piece of paper, he hit her breast with
his arm while he was “looking dead at [her],” which led Curry to believe
he did it on purpose. (Id. at 29).
5
Curry testified Huddleston made sexual comments to her all the time. (Id. at 27).
She also testified that no matter what she talked about or did while working
alongside Huddleston, “[H]e [went] back to sex. He [was] going to bring sex out
of it.” (Id. at 29).
C. Curry’s November 2015 Complaint
Koch Foods’ Equal Employment Opportunity and Harassment Policy
permits an employee to report harassment “by any [] person with whom the
employee has contact as a result of their employment,” orally or in writing, and
designates a number of individuals for receiving harassment complaints, including
a Shift Manager. (Doc. 46-2 at 78). Curry testified other USDA Inspectors told
her the government “rules over Koch Foods” and advised her not to say anything
about Huddleston’s conduct because both she and Huddleston would probably be
fired. (Doc. 45-1 at 33).
Nonetheless, in early November 2015, Curry spoke with her supervisor,
Carolyn Richey, about Huddleston’s behavior. (Id. at 29-31, 35-36). Curry told
Richey that Huddleston was making sexual comments to her and sexually
harassing her, she did not like talking about sex every day, and she did not want to
work with Huddleston.
(Id. at 29, 31, 35).
Curry told Richey everything
Huddleston had said to her and also told Richey that Huddleston had simulated oral
sex. (Id. at 39, 46). Richey said she did not have any control over who the USDA
6
sent to work at the plant but that she would speak with the Night Shift Manager,
Jeff Hawkins, about Huddleston’s behavior and let Hawkins know Curry did not
want to work with Huddleston because he was making her uncomfortable. (Id. at
31, 35). Richey did speak with Hawkins. (Doc. 45-7 at 16). Two or three days
after Curry complained to Richey, Hawkins asked Curry to give him a few days to
see what he could have done and told her that he would get back to her. (Doc. 451 at 31, 35-36).
D. The “Book Incident”
After Curry complained to Richey in early November 2015, the “book
incident” happened. (Id. at 30). Huddleston asked Curry whether she had seen the
movie “Fifty Shades of Grey.” (Id.). After Curry responded she had seen the
movie, Huddleston asked her whether she liked it. (Id.). Curry responded “all it
was about was sex.” (Id.). Huddleston told Curry the book on which the movie
was based was good and very interesting. (Id.). Curry said she did not need to
read the book because she had seen the movie, but Huddleston insisted he give
Curry the book to read, after which she could let him know what she thought about
it. (Id.). Curry was not uncomfortable that Huddleston asked her to read the book.
(Id. at 43). Huddleston brought the book to work on November 17, 2015. (Id. at
31, 36). Curry took the book, but she did not read it. (Id. at 31). Instead, Curry’s
mother saw the book in Curry’s car and asked if she could read it. (Id.). Curry
7
asked Huddleston if her mother could read the book, and Huddleston said that was
not a problem and to “take your time.” (Id.).
Curry testified problems arose when she did not talk to Huddleston about the
book:
He would get absolute – he was like did you read this part where, you
know, he is beating her pussy out, did you see that part where he was
just – like he was just in control and he was just beating her out and –
anyway. And then he said – I was like no, I didn’t – I didn’t get to
that part, I haven’t got to that part yet, didn’t get to that part. It was
like every day, it was like did you read this part, this part, this part,
and I’m like no, I haven’t got there yet. Got to the point where
[Huddleston] would get on the stand and I would tell him my tooth
was hurting so he wouldn’t say nothing about the book.
(Id.). Huddleston then began asking when Curry was going to return the book.
(Id.). Curry told Huddleston she would return the book after her mother finished
reading it. (Id.). Curry did bring the book to work after her mother finished
reading it, but she left the book in her car. (Id.). She told Huddleston she would
give the book to the guard and he could get it from the guard when he came in the
next morning. (Id.). On November 30, 2015, Huddleston told Curry he had
checked with the guard and that Curry had not given the book to the guard. (Id. at
31, 60-61). He said, “If I don’t have my book, then I’m going to knock your ass
out.” (Id.). On December 1, 2015, Huddleston came up the steps on Curry’s side
of the stand and said, “[I]f you don’t have my book today, I’m going to shove my
8
dick so far up you it’s going to come out your throat.” (Id. at 32-33, 35). Curry
pulled the book out from under her smock, shoved or slung the book toward
Huddleston, who let it hit the ground, and loudly told Huddleston to “get out of
[her] motherfucking face.” (Id. at 32).
Curry testified that when Huddleston made one or both of these threats “[h]e
was at [her] face,” “was so mad and red,” and was “really, really serious.” (Id. at
34). She testified “[she] [couldn’t] say that [she] thought he was going to [carry
out one or more of the threats], but he might have – it had gotten to the point where
they [were] still allowing him to still come out there, he could have done
anything.” (Id.). She also repeatedly testified later that she thought Huddleston
was going to hurt her, noting she worked with a long, sharp knife that was not far
from Huddleston. (Id. at 34, 65). Curry also generally wore steel-toed boots and a
full-coverage, chainmail-type glove on her non-dominant hand when at work. (Id.
at 64-65).
Curry testified Huddleston’s actions brought back memories of a childhood
trauma that involved her being molested by a man who drove her to preschool for
two-and-a-half years because her mother did not have a car. (Doc. 45-1 at 59).
The man stuck a rifle down her throat and told her he would “blow her brains out”
if she told anyone. (Id.). She testified she continues to have flashbacks and
nightmares every other week, both about her childhood trauma and Huddleston’s
9
conduct. (Id. at 58, 60). She testified she started taking Tylenol PM to sleep in
December 2015 after Huddleston threatened her. (Id. at 58).
E. Curry’s December 1, 2015 Complaint & Koch Foods’ Response
When Huddleston made his December 1, 2015 threat, Curry hit a button that
called one of Huddleston’s supervisors, USDA Supervisory Veterinarian Courtney
Baldwin, to the production line.
(Id. at 32).
Curry told Dr. Baldwin what
Huddleston had said, that he had threatened her, and that she was not going to
work with him anymore. (Id. at 32-33).
Also on that day, Curry made a written statement. (Id. at 36-37). In the
statement, Curry wrote Huddleston had threatened her about returning the book.
(Doc. 46-1 at 59). She also wrote she had asked Huddleston whether the real
reason he was upset was not the book, but rather because she asked another USDA
Inspector not to let him on the stand because he was “disrespectful in a sexual
way.” (Id.). Additionally, she noted several specific sexual comments Huddleston
had made to her, although not regarding the book. (Id. at 59-60). Hawkins shared
Curry’s statement with Dr. Baldwin the next day. (Doc. 45-5 at 14).
Curry’s statement was also delivered to Lisa Wright, Human Resources
Manager at the Ashland plant. (Doc. 45-6 at 29-30). Wright shared the statement
with Randy Cisne, Complex Human Resources Manager, with oversight of
multiple Koch Foods’ plants, including the Ashland plant. (Id. at 30; Doc. 45-4 at
10
10-11). At Cisne’s direction, Wright interviewed Curry about the contents of the
statement. (Doc. 45-1 at 40-41; Doc. 45-3 at 10-11; Doc. 45-6 at 30).5 During the
interview, Curry told Wright that Huddleston had threatened her about returning
the book.
(Doc. 45-1 at 44).
During the same interview and a subsequent
conversation that Wright indicated was off the record, Curry also told Wright about
Huddleston’s sexual comments. (Id. at 40-43). Wright believed Huddleston had
sexually harassed Curry and relayed this determination to Cisne. (Doc. 45-6 at 15,
41).
Based on the investigation conducted by Wright, Cisne also believed
Huddleston had sexually harassed Curry. (Doc. 45-4 at 15).
Koch Foods offered to move Curry from the evisceration department to
another department within the plant, such as “live hanging” or the “cold side.”
(Doc. 45-1 at 51). Curry declined the offer because she did not think she should
have to change departments because of Huddleston’s conduct. (Id.). Instead,
Koch Foods arranged for someone to relieve Curry for the last thirty minutes of her
shift if Huddleston came in early so that Curry would not have to interact with
Huddleston. (Id. at 51-53). Initially, Koch Foods instructed Curry to sit in the
break room until the end of her shift. (Id. at 52). Curry was nonetheless paid for
her full shift. (Id.). At some point, Koch Foods moved Curry to a different line for
5
Curry testified she met with Wright the evening after making her written statement. (Doc. 45-1
at 39). Wright testified she met with Curry for the first time on December 8, 2015, after
receiving Curry’s statement on December 7, 2015. (Doc. 45-6 at 29-30).
11
the last thirty minutes of her shift. (Id.). Curry performed the same job and
received the same pay on this other line. (Id.). However, she was embarrassed by
having to leave her stand thirty minutes before the end of her shift. (Id. at 53). She
testified that when she had to do so, it caused a lot of chaos; everybody looked at
her and asked her questions; she had to sit in the break room “like [she] [was] the
one [who] did something”; and that she was “completely absolutely run off the
line.” (Id. at 49).
Curry does not recall working with Huddleston again after December 1,
2015. (Doc. 45-1 at 49). Huddleston did make one additional comment to Curry
after that date. (Id. at 53). One morning as Curry was leaving the line, she passed
Huddleston as he was coming onto the line, and he loudly said, “[M]onkeys don’t
stop my show.” (Id.).
F. The USDA’s Inquiry
The USDA has a policy for handling complaints made by regulated industry
establishments like Koch Foods against employees of the agency, referred to as
Food Safety and Inspection Service Directive 4735.7 (“FSIS Directive 4735.7” or
the “Directive”).
(Doc. 46-1 at 116-120; Doc. 46-2 at 1-5).
The Directive
provides that an establishment may make a formal complaint, which is generally in
writing and may require a formal inquiry and response, or an informal complaint,
which is generally verbal and addressed at the local level. (Doc. 46-1 at 119; Doc.
12
46-2 at 1). After receiving a formal, written complaint, a supervisory official may
conduct an inquiry and/or request that the Labor and Employee Relations Division
of the USDA’s Employee Relations Branch (the “LERD”) conduct a formal
investigation. (Doc. 45-3 at 9; Doc. 46-2 at 1-2). A supervisor may receive an
informal, verbal complaint. (Doc. 46-2 at 1). The Directive advises, “Resolution
at the lowest possible supervisory level is desirable and encouraged.” (Id.). It
provides an appeal process to the extent an establishment is not satisfied with the
resolution of a complaint. (Doc. 45-3 at 42; Doc. 46-2 at 2-3).
Cisne believed the USDA would be looking into Curry’s allegations against
Huddleston after Curry’s December 1, 2015 statement was shared with Dr.
Baldwin. (Doc. 46-3 at 4).
On January 13, 2016, Cisne and Wright met with
James Jordan, a USDA Supervisory Veterinarian who directly supervised
Huddleston, because Koch Foods had not received any communication from the
USDA regarding the status of its investigation and Huddleston continued to work
overtime, causing his and Curry’s shifts to overlap. (Doc. 45-6 at 53; Doc. 46-1 at
51; 46-3 at 4). They presented the investigation file to Dr. Jordan. (Doc. 45-6 at
53; Doc. 46-1 at 51; 46-3 at 4). Dr. Jordan told Cisne and Wright he would
provide the file to Dr. John Huie, a USDA Front Line Supervisor who conducts
inquiries into USDA Inspectors.
(Doc. 46-3 at 4).
At that point, Dr. Huie
commenced an inquiry into the allegations. (Doc. 45-3 at 15-16).
13
Cisne requested an update from Dr. Huie on February 9, 2016. Dr. Huie told
Cisne the inquiry was being processed and would take some time to resolve. (Doc.
46-2 at 6). On March 21, 2016, Cisne notified Dr. Huie that Curry had filed an
EEOC Charge, requested another update from Dr. Huie, and asked that the USDA
ensure Huddleston was not working on Curry’s line. (Id. at 19-20).
On March 23, 2016, Wright called Curry to check in and ask whether she
had had any more problems. (Doc. 45-1 at 54). Curry told Wright people were
asking a lot of questions regarding the matter with Huddleston and that she felt
disrespected by Koch Foods and like she was not being taken seriously. (Id.; Doc.
46-2 at 9). She also told Wright about Huddleston’s monkey comment. (Doc. 451 at 54; Doc. 46-2 at 9).
On March 24, 2016, Dr. Huie asked Koch Foods to speak with one of its
employees named Andreal “Nikki” Cofield about whether a USDA employee had
made inappropriate comments to her. (Doc. 46-2 at 19). Wright interviewed
Cofield on March 25, 2016. (Id. at 10). Wright’s interview notes indicate Cofield
said Huddleston had made several sexual gestures and comments to her when she
worked with him approximately two years prior; said Huddleston had made her
feel very uncomfortable by staring at her while she was working and constantly
hollering her name in an effort to get her attention; and recalled several specific
things Huddleston had said to her and how they made her feel. (Id.). A written
14
statement Cofield made at the time of Wright’s interview recounts an incident
where Huddleston asked her why she was holding her shirt down to cover her
bottom, she responded she was doing so in order that he couldn’t see anything, and
he replied, “ ‘ Well I’m gonna stand here till you let it go where I can see what I
want.”
(Id. at 11).
Cofield told Wright she contemporaneously reported
Huddleston’s conduct to her supervisor and gave a statement to Jennifer
McCollough,6 then the Human Resources Manager at the Ashland plant. (Id. at
10). McCollough asked her whether she would consider transferring to a different
department, and she accepted this offer. (Id.). In her March 25, 2016 statement,
Cofield wrote that Huddleston gave her no more problems after the shirt incident.
(Id. at 12). Wright submitted her interview notes and Cofield’s later statement to
Dr. Huie. (Id. at 19).
After interviewing Cofield, Wright found Cofield’s May 2014 written
statement. (Doc. 45-6 at 11-12). In the statement, Cofield recounted the incident
where she pulled her shirt down to cover her bottom and further stated Huddleston
had done other things, such as making obscene gestures mimicking the
performance of sexual acts on her. (Doc. 46-2 at 13). Koch Foods never provided
this written statement to the USDA. (Doc. 45-4 at 20).
6
Although Wright’s interview notes identify the Human Resources Manager as Jennifer Mitchell
(Doc. 46-2 at 10), McCollough’s last name was Mattox during the time she worked at the
Ashland plant (Doc. 46-4 at 2). McCollough voluntarily resigned from her position at the
Ashland plant in February 2015. (Id.).
15
McCollough has submitted an affidavit dated June 2018, in which she
testifies she offered Cofield another position because she was not permitted to
direct Huddleston, a USDA employee, and verbally reported Cofield’s allegations
to a USDA Supervisory Veterinarian who was filling in for Dr. Jordan,
Huddleston’s regular supervisor. (Doc. 46-4 at 3). She further testifies she does
not remember the supervisor’s name, although she recalls it was an African
American man with an accent. (Id.). Finally, she testifies she does not know what,
if anything, the USDA did with the information she reported but that she is not
aware of any additional issues Cofield had with Huddleston or any other
complaints made against Huddleston by Koch Foods’ employees. (Id.).
According to Wright, McCollough should have reported the information she
learned from Cofield regarding Huddleston’s conduct to Cisne, who should have
then reported the information to the USDA. (Doc. 45-6 at 35-36). Cisne also
testified that McCollough should have reported Cofield’s complaint to him. (Doc.
45-4 at 7). McCollough did not report the complaint to Cisne. (Id.).
Dr. Huie testified he did not learn of Cofield’s allegations against
Huddleston until he was conducting the inquiry regarding Curry’s allegations.
(Doc. 45-3 at 7, 38, 57-59). He further testified he would have performed an
inquiry had he received Cofield’s written statement in 2014. (Id. at 12). Although
he initially testified there would be a written record if McCollough had informed
16
Huddleston’s supervisor of Cofield’s complaint, he later testified it was possible
for a USDA supervisor to receive a verbal complaint and resolve the issue without
escalating it to him, in which case there would not be a written record. (Id. at 59).
He also testified a USDA supervisor would have spoken with Huddleston about
any complaint received about him harassing Cofield. (Id.). Huddleston testified
no one ever spoke with him about Cofield’s complaint. (Doc. 45-2 at 38).
After completing his inquiry, Dr. Huie requested through his district
manager on March 31, 2016, that the LERD conduct a formal investigation of
Huddleston. (Doc. 45-3 at 66-67; Doc. 46-1 at 53-54). On April 11, 2016, Cisne
notified Dr. Huie that according to Curry, Huddleston continued to talk about the
case, which Curry felt was in retaliation for her filing a complaint. (Doc. 46-2 at
21). Cisne officially requested that Huddleston be moved from Curry’s line. (Id.).
Ultimately, the USDA’s LERD chose not to conduct a formal investigation but did
issue Huddleston a Letter of Caution on April 25, 2016. (Doc. 45-3 at 68; Doc. 461 at 67-68). Huddleston took a leave of absence from work for medical reasons
between mid-April and late-May 2016. He signed to acknowledge receipt of the
Letter of Caution the day after his return to work on May 23, 2016. (Doc. 46-1 at
68, 101). On his return, Huddleston worked on a different line from the one on
which Curry worked. (Id. at 101). Curry left Koch Foods to take a position with
another employer during the first week of June 2016. (Doc. 45-1 at 14-15).
17
II. STANDARD OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he [district] court
shall grant summary judgment 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking
summary judgment bears the initial burden of informing the district court of the
basis for its motion and identifying those portions of the record the party believes
demonstrate the absence of a genuine dispute as to a material fact. Celotex Corp.,
477 U.S. at 323. If the moving party carries its initial burden, the non-movant
must go beyond the pleadings and come forward with evidence showing there is a
genuine dispute as to a material fact for trial. Id. at 324.
The substantive law identifies which facts are material and which are
irrelevant. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such
that a reasonable jury could return a verdict for the non-movant. Id. at 248. If the
evidence is merely colorable or not significantly probative, summary judgment is
appropriate. Id. at 249-50 (internal citations omitted). All reasonable doubts about
the facts should be resolved in favor of the non-movant, and all justifiable
inferences should be drawn in the non-movant’s favor. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
18
III. DISCUSSION
A. “Hostile Work Environment” Sexual Harassment
Title VII prohibits “hostile work environment” sexual harassment. Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To establish a prima facie case of
“hostile work environment” sexual harassment, a plaintiff must show (1) she
belongs to a protected group; (2) she has been subject to unwelcome sexual
harassment, such as sexual advances, requests for sexual favors, or other conduct
of a sexual nature; (3) the harassment was based on her sex; (4) 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. Mendoza v. Borden, Inc., 195 F.3d 1238,
1245 (11th Cir. 1999).
Koch Foods rests its summary judgment motion as to
Curry’s “hostile work environment” sexual harassment claim on the second,
fourth, and fifth elements.
1. Unwelcome Sexual Harassment
Koch Foods characterizes the book incident as a disagreement regarding the
return of the book that ended in a yelling match, not unwelcome sexual
harassment. (Doc. 44 at 26, 30 n.4, 31; Doc. 52 at 14-18).7 To support this
7
Koch Foods makes this characterization in the context of its arguments on the fourth and fifth
elements of Curry’s “hostile work environment” sexual harassment claim. (Doc. 44 at 26, 30
19
characterization, Koch Foods (1) cites Curry’s testimony she knew the book
contained sexual content because she had seen the movie; was not uncomfortable
when Huddleston asked her to read the book; and gave the book to her mother to
read;8 (2) emphasizes Curry’s testimony that Huddleston conditioned each threat
on her failure to return the book; she told Wright that Huddleston had made threats
regarding the return of the book; and she told Dr. Baldwin that Huddleston had
threatened her, not that he had made sexual comments to her about the book; and
(3) notes Curry’s written statement does not mention sexual comments Huddleston
made to her regarding the book but, rather, states Huddleston made threats
regarding the return of the book.
(Doc. 52 at 14-18).
Notwithstanding this
evidence, there is testimony that would allow a reasonable jury to conclude the
book incident as a whole constituted unwelcome conduct of a sexual nature.
Curry testified Huddleston repeatedly attempted to discuss the book with
her. (Doc. 45-1 at 31). Her testimony indicates she viewed the book as “[just]
about sex” and that in trying to initiate one conversation about the book,
n.4, 31; Doc. 52 at 14-18). Because the characterization goes to the second element of the claim
– whether Curry was subject to unwelcome sexual harassment – the undersigned addresses it as a
stand-alone argument.
8
Based on this testimony, Koch Foods argues with respect to the book incident that Curry cannot
satisfy the subjective prong of the severe-and-pervasive test. (Doc. 52 at 14-15). That test is
discussed in greater detail below. Here, it is sufficient to note a court considers the conduct
complained of collectively when analyzing the fourth element of a “hostile work environment”
sexual harassment claim, Mendoza, 195 F.3d at 1246, and the book incident is only one instance
of conduct Curry claims was harassing. For this reason, Koch Foods’ argument Curry did not
subjectively perceive the book incident as sufficiently severe or pervasive is more properly
considered an argument the incident was not one of unwelcome sexual harassment.
20
Huddleston asked Curry whether she had read the part where “he is beating her
pussy out” and “he was just in control and [] was just beating her out [].” (Id.).
Based on this testimony, a reasonable jury could conclude Huddleston’s conduct
surrounding the book was sexual in nature. Cf. Gupta v. Florida Bd. of Regents,
212 F.3d 571, 586 (11th Cir. 2000) (holding repetitive solicitude; invitation to dine
at a Hooters restaurant, unaccompanied by any sexual remark or pressure when
declined; and invitation to be part of a group dinner at a bar was not sexually
harassing behavior), overruled on other grounds as recognized by Byrd v.
Postmaster General, 582 F. App’x 787, 790 (11th Cir. 2014).
Curry also testified she repeatedly deflected Huddleston’s attempts to
discuss the book with her.
(Doc. 45-1 at 31).
Based on this testimony, a
reasonable jury could conclude that even if Curry did not find Huddleston’s
request that she read the book offensive or find the book so offensive that she
rebuffed her mother’s request to read the book, she did not want to discuss the
book with Huddleston and found his repeated attempts to initiate discussions about
the book uncomfortable. See Henson v. City of Dundee, 682 F.2d 897, 903 (11th
Cir. 1982) (noting conduct is unwelcome if the employee did not solicit or incite it
and regards it as undesirable or offensive).
This same testimony supports a reasonable inference Huddleston demanded
Curry return the book because he was frustrated she continued to deflect his
21
attempts to initiate sexually explicit conversations about the book and, therefore,
that the true precipitating force for these threats was this frustration.
This
inference is bolstered by Curry’s testimony that problems arose when she did not
talk to Huddleston about the book (Doc. 45-1 at 31) and by the portion of her
written statement noting she asked him whether the real reason he was upset was
because she had asked the third-shift USDA Inspector not to let him on the stand
early because he was “disrespectful in a sexual way” (Doc. 46-1 at 59).
Finally, regardless of the conduct preceding the final book incident threat or
what precipitated that threat, it would be difficult to reach any conclusion other
than that the threat itself constituted unwelcome conduct of a sexual nature. Curry
testified Huddleston stepped up onto her stand, got in her face, appeared mad and
serious, and threatened to “shove [his] dick so far up [her] [it would] come out
[her] throat.” (Id. at 32, 34, 35). A reasonable jury could interpret this threat as
one of graphic sexual violence made while encroaching on the personal space of its
recipient in an aggressive manner. Viewed as such, it is self-evident the threat
would constitute unwelcome conduct of a sexual nature.
Further, Curry’s
testimony regarding the psychological effects of Huddleston’s conduct supports
this conclusion. (Doc. 45-1 at 58-60).
Because Curry has produced sufficient evidence for a reasonable jury to
conclude the book incident as a whole constituted unwelcome conduct of a sexual
22
nature, the incident may be considered part of her “hostile work environment”
sexual harassment claim.
2. Sufficiently Severe or Pervasive Harassment
The fourth element of a “hostile work environment” sexual harassment
claim has a subjective and an objective component. Mendoza, 195 F.3d at 1246.
The employee must subjectively perceive the harassment as severe or pervasive
enough to alter the terms and conditions of her employment and create a
discriminatorily abusive work environment, and her subjective perception must be
objectively reasonable. Id. An employee’s subjective perception is objectively
reasonable if a reasonable person in her position would consider the harassment
hostile or abusive, considering all of the circumstances. Id. Factors relevant to the
objective component include (1) the frequency of the conduct; (2) the severity of
the conduct; (3) whether the conduct is physically threatening or humiliating or,
rather, a mere offensive utterance; and (4) whether the conduct unreasonably
interferes with the employee’s job performance. Id. A court must consider the
conduct complained of collectively and determine whether a sexually hostile work
environment is demonstrated by a totality of the circumstances.
Id.
These
standards are designed to ensure Title VII does not become a “ ‘general civility
code.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Properly
23
applied, they exclude offhand comments, isolated incidents (unless extremely
serious), and the “sporadic use of abusive language” from actionable conduct.
Faragher, 524 U.S. at 788 (internal quotation marks omitted).
Koch Foods argues Curry’s delay in reporting harassment she alleges began
in September 2014 undermines her claim she subjectively perceived the
harassment as severe or pervasive. (Doc. 52 at 13). However, Curry testified other
USDA Inspectors told her the government “rules over Koch Foods” and advised
her not to saying anything about Huddleston’s conduct because both she and
Huddleston would probably be fired.
(Doc. 45-1 at 33).
Under similar
circumstances, an Alabama federal district court declined to impute the suggestion
that the conduct was not sufficiently severe or pervasive to a plaintiff. See Splunge
v. Shoney’s, Inc., 874 F. Supp. 1258, 1274-75 (M.D. Ala. 1994) (plaintiff’s failure
to report alleged harassment was coupled with fear of retaliatory termination and
an unawareness of employer’s internal grievance procedure).
With respect to the fourth element’s objective component, Koch Foods
argues the comments Huddleston made to Curry were “one-off,” isolated remarks
spread out over a period of time, as opposed to daily, repeated occurrences, and
that the threats were two, isolated incidents.
(Doc. 44 at 25-26).
First,
notwithstanding the number of specific comments to which Curry testified, Curry
testified generally that Huddleston made sexual comments to her all the time; that
24
no matter what she talked about or did while working alongside Huddleston, he
turned it into a conversation about sex; and that she told Richey she did not like
talking about sex every day. (Doc. 45-1 at 29, 31). This testimony would allow a
reasonable jury to conclude Curry was subject to frequent, unwelcome conduct of a
sexual nature by Huddleston. See Dees v. Johnson Controls World Servs., Inc.,
168 F.3d 417, 418, 418, n.1 (11th Cir. 1999) (noting plaintiff was subject to
continuous barrage of sexual harassment and that although first specific incident
she could recall occurred in 1993, she stated numerous incidents occurred before
then).
Second, the frequency of the harassment is only one consideration relevant
to determining whether it was sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily abusive working
environment. See Mendoza, 195 F.3d at 1246. Also relevant is whether the
harassment was physically threatening. See id. Moreover, frequency is measured
not just by considering the total number of incidents over the entire period in
question, but also by considering the rate at which those incidents occurred. See
Jones v. UPS Ground Freight, 683 F.3d 1283, 1303-04 (11th Cir. 2012). In Jones,
seven incidents of racists acts over a year, four of which occurred within a twoweek period near the end of the plaintiff’s employment and one of which was a
possibly threatening confrontation, created a jury question as to whether the
25
plaintiff endured a racially hostile work environment. Id. (holding the increasing
frequency and seriousness of the harassment represented an escalation of incidents
making the issue one for the trier of fact).
Curry has identified at least eight unwelcome comments of a sexual nature
Huddleston made to her over approximately fourteen months, at least one of which
was accompanied by an overtly sexual gesture. (Doc. 45-1 at 26-29, 45, 57). She
also identified one incident of unwelcome touching that occurred during that time.
(Id. at 29).
On the heels of the unwelcome sexual comments and touching,
Huddleston initiated an incident that involved him repeatedly attempting to discuss
the sexual content of a book with Curry during an approximately two-week period.
(Id. at 31). That incident culminated in two threats of physical violence which a
reasonable jury could determine was precipitated by Huddleston’s frustration
Curry would not discuss the sexual content of the book with him. (Id. at 31-32).
Both threats were made in proximity to a knife. (Id. at 34). One was graphic and
sexual in nature, and Huddleston’s physical demeanor and encroachment on
Curry’s personal and professional space when making it served to intensify the
threat. (Id.). On these facts, a reasonable jury could conclude Curry endured
26
sexual harassment severe or pervasive enough to alter the terms and conditions of
her employment and create a discriminatorily abusive work environment.9
Koch Foods also argues Huddleston’s comments did not adversely affect
Curry’s work performance because after making her complaint she remained on
the same shift, in the same position, performing the same work; never worked
with, or was subjected to sexual comments from, Huddleston again; did not receive
a negative performance review or any disciplinary action; and remained at Koch
Foods until she secured other employment.
(Doc. 44 at 26-29).
First, this
argument focuses on the conditions of Curry’s employment after her complaint on
December 1, 2015, effectively put an end to Huddleston’s conduct. The proper
focus of the inquiry is whether the conduct complained of unreasonably interferes
with the plaintiff’s job performance while that conduct is occurring. See, e.g.,
Lockett v. Choice Hotels Int’l, Inc., 315 F. App’x 862, 866-67 (11th Cir. 2009) (in
9
Koch Foods cites a number of cases, claiming those courts found conduct more egregious than
Huddleston’s insufficient to support a “hostile work environment” sexual harassment claim.
(Doc. 44 at 24, 24 n.1, 25 n.2). These cases are distinguishable by the absence of physically
threating conduct alleged by the plaintiffs. See Mendoza, 195 F.3d at 1248 (noting absence of
physically threatening conduct); Gupta, 212 at 586 (same); Webb-Edwards v. Orange Cnty
Sheriff’s Office, 525 F.3d 1013, 1027 (11th Cir. 2008) (same); Shepherd v. Comptroller of Pub.
Accounts of State of Texas, 168 F.3d 871, 874 (5th Cir. 1999) (same); Sraver v. Surgical
Monitoring Servs., Inc., 2006 WL 2190727, at *5 (D. Md. July 27, 2006) (same); Miller v.
Lectra USA, Inc., 145 F. App’x 315, 317 (11th Cir. 2005) (no allegation of physically
threatening conduct); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.3d 333, 334-35 (7th
Cir. 1993) (same); Duncan v. Gen. Motors Corp., 300 F.3d 928, 935 (8th Cir. 2002) (same);
Howard v. City of Robertsdale, 168 F. App’x 883, 889 (11th Cir. 2006) (holding sexual
comments and jokes could not serve as basis for constructive knowledge of harassment). The
Eleventh Circuit has noted that whether the conduct complained of was physically threatening is
an important factor in the hostile work environment analysis. See Jones, 683 F.3d at 1303.
27
holding there was no evidence conduct complained of unreasonably interfered with
employee’s work performance, court noted plaintiff received at least one pay raise
during the time that conduct occurred).
More to the point, [t]he Supreme Court has cautioned that harassment need
not be shown to be so extreme that it produces tangible effects on job performance
in order to be actionable.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
1277 (11th Cir. 2012) (citing Harris, 510 U.S. at 22 (“[E]ven without regard to []
tangible effects [on job performance], the very fact that the discriminatory conduct
was so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin offends Title
VII’s broad rule of workplace equality.”)); see also Lockett, 315 F. App’x at 867
(noting a Title VII violation does not require that plaintiff’s job performance be
tangibly affected). Whether the conduct complained of unreasonably interferes
with the plaintiff’s job performance is one factor relevant to determining whether
the conduct was sufficiently severe or pervasive, and the Eleventh Circuit employs
a totality-of-the-circumstances approach to the determination. Miller, 277 F.3d at
1276 (noting the defendant lost sight of this approach in focusing on the single
factor of unreasonable interference with job performance).
Given Curry has
produced evidence of frequent, unwelcome conduct of a sexual nature that
escalated to serious threats of physical violence, any absence of evidence
28
Huddleston’s conduct unreasonably interfered with Curry’s job performance is not
fatal to Curry’s claim.
See id. at 1266-67 (holding plaintiff’s failure to
convincingly establish how harasser’s conduct interfered with his duties was not
fatal to his racially hostile work environment claim, given plaintiff established the
conduct was frequent, severe, and humiliating).
3. Basis for Liability
An employer may incur Title VII liability even if the alleged harasser is a
third party, such as an employee or customer. Beckford v. Dep’t of Corr., 605 F.3d
951, 957 (11th Cir. 2010) (describing this liability as well-established). Under
such circumstances, a plaintiff must demonstrate the fifth element of a “hostile
work environment” sexual harassment claim by showing the employer had actual
or constructive notice of the harassment and failed to take sufficient corrective
action. Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003). Actual
notice is established by proof management knew about the harassment. Watson,
324 F.3d at 1259. For example, actual notice is established where an employee
shows she complained to management, Henson, 682 F.2d at 905, or that her
employer had a clear, published policy setting forth the procedure for reporting
harassment and she followed that procedure, Watson, 324 F.3d at 1259.
Constructive notice is established where harassment was so severe and pervasive
that management reasonably should have known about it. Id.
29
An employer is not liable for harassment of which it had actual or
constructive notice provided it took sufficient corrective action. See Watson, 324
F.3d at 1261 (describing the response required as “immediate and appropriate”
corrective action”); Wilcox v. Corr. Corp. of Am., 892 F.3d 1283, 1287-88 (11th
Cir. 2018) (describing the response required as “prompt” corrective action); Miller
v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir. 2002) (same);
Henson, 682 F.2d at 905 (same). The corrective action must be reasonably likely
to prevent the harassment from recurring. Kilgore v. Thompson & Brock Mgmt.,
Inc., 93 F.3d 752, 754 (11th Cir. 1996). The adequacy of the corrective action
must be determined on a case-by-case basis. Johnson v. Austal, U.S.A., L.L.C., 805
F. Supp. 2d 1299, 1317 (S.D. Ala. 2011).
Koch Foods argues it took sufficient corrective action by separating Curry
from Huddleston after the book incident threat on December 1, 2015, and reporting
Curry’s allegations against Huddleston to the USDA. (Doc. 44 at 29-33). In
response, Curry does not challenge the adequacy of the corrective action Koch
Foods took after her December 1, 2015 complaint.10 She argues Koch Foods
10
This action was sufficient both in promptness and substance. Koch Foods immediately took
steps to ensure Curry never worked with Huddleston again. (Doc. 45-1 at 49, 51-53). See
Fleming v. Boeing Co., 120 F.3d 242, 244, 247-48 (11th Cir. 1997) (holding employer took
sufficient corrective action where, inter alia, it transferred harassed employee to different work
group in same facility). It commenced its own investigation of Curry’s complaint within one
week and within approximately six weeks took steps to ensure the USDA undertook a review of
the complaint. (Doc. 45-1 at 39; Doc. 45-6 at 29-30, 53; Doc. 46-1 at 51; Doc. 46-3 at 4). See
30
should have (1) prevented the harassment from occurring in the first place by
responding differently to Cofield’s complaint against Huddleston in May 2014, or
at least (2) taken some action after she reported Huddleston’s conduct to Richey in
early November 2015. (Doc. 50 at 30-38).
a. Adequacy of Response to Cofield’s May 2014 Complaint
Courts have held that under certain circumstances, an employer may be
obligated to take adequate measures to try to prevent an employee’s harassment,
not merely to act after the harassment has occurred. In what has been described as
the leading case on this theory of liability, the Fourth Circuit held an employer may
be liable for “hostile work environment” sexual harassment if it anticipated or
reasonably should have anticipated the plaintiff would be sexually harassed and
failed to take action reasonably calculated to prevent the harassment. Paroline v.
Unisys Corp., 879 F. 2d 100, 107 (4th Cir. 1989), opinion vacated in part on other
grounds, 900 F.2d 27 (4th Cir. 1990); see also Foster v. Univ. of MarylandEastern Shore, 787 F.3d 243, 255 (4th Cir. 2015) (reaffirming the holding of
Paroline); Donaldson v. Lensbouer, 2017 WL 2199006, at *10 (W.D. Pa. May 18,
Wilcox, 892 F.3d at 1288 (rejecting plaintiff’s argument six weeks between her complaint and
her interview by an investigator was too long where the investigation had a lot of moving parts).
Curry experienced only one additional instance of unwelcome conduct from Huddleston. (Doc.
45-1 at 53). See Wilcox, 892 F.3d at 1288 (evaluating effectiveness of corrective action in
determining employer’s Title VII liability); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311,
1317-18 (11th Cir. 1989) (affirming district court’s holding plaintiffs were not constructively
discharged, where, inter alia, plaintiffs alleged only one additional incident of harassment
occurred after reprimand)
31
2017) (describing Paroline as the leading decision on this theory of liability);
Hirase-Doi v. U.S. West Commc’ns, Inc., 61 F.3d 777, 784 (10th Cir. 1995) (citing
Paroline for the theory of liability in general), abrogated on other grounds by
Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher, 524 U.S. 775;
Munn v. Mayor and Aldermen of City of Savannah, Georgia, 906 F. Supp. 1577,
1584 (S.D. Ga. 1995) (citing Paroline and Hirase-Doi for the theory of liability in
general); Longstreet v. Illinois Dep’t of Corr., 276 F.3d 379, 382-83 (7th Cir.
2002) (espousing similar theory of liability); Ferris v. Delta Air Lines, Inc., 277
F.3d 128, 136-37 (2d Cir. 2001) (same). In so holding, the Fourth Circuit noted an
employer’s knowledge an employee has previously harassed employees other than
the plaintiff “will often prove highly relevant” in determining whether the
employer anticipated or should have anticipated the plaintiff would be harassed.
Paroline, 879 F.2d at 107.
Whether Cofield’s May 2014 allegations against Huddleston are sufficient to
have put Koch Foods on notice Huddleston had a tendency to sexually harass
female Inspector Helpers, Koch Foods’ response to the allegations was reasonably
calculated to prevent future harassment by Huddleston. The Eleventh Circuit has
held transferring a harassed employee to a different work group in the same facility
and issuing a verbal warning to the harasser constitutes sufficient corrective action
in response to substantiated allegations of unwelcome conduct similar to those
32
made by Cofield against Huddleston. See Fleming v. Boeing Co., 120 F.3d 242,
244, 247-48 (11th Cir. 1997) (male employee touched female employee in an
unwelcome manner, leered at her, and made inappropriate comments to her).
McCollough’s response to Cofield’s complaint is substantially similar to the
corrective action the Eleventh Circuit held sufficient in Fleming. McCollough
offered to transfer Cofield to a different department, and Cofield accepted the
offer. (Doc. 46-2 at 10). She could not address Huddleston because he was a
USDA employee, but she did verbally report Cofield’s complaint to a USDA
Supervisory Veterinarian with authority over Huddleston.
(Doc. 46-4 at 3).
Although she did not learn what came of her verbal report to Huddleston’s
supervisor, she was not aware of any additional issues Cofield had with
Huddleston. (Id.). In her March 2016 statement, Cofield confirmed she did not
have any more problems with Huddleston. (Doc. 46-2 at 12-13). McCollough was
not aware of any other complaints made against Huddleston by Koch Foods’
employees, either. (Doc. 46-4 at 3). On these facts, it would have been reasonable
for McCollough to believe her verbal report to Huddleston’s supervisor was
sufficient to invoke some action against, or at least questioning of, Huddleston
regarding Cofield’s complaint. Because McCollough transferred Cofield away
from Huddleston and took action reasonably designed to ensure Cofield’s
33
complaint was addressed with Huddleston, the Eleventh Circuit’s holding in
Fleming logically extends to the circumstances here.
Curry disputes that McCollough verbally reported Cofield’s complaint to
Huddleston’s supervisor on the ground McCollough cannot remember more
specifics regarding that person’s identity.
(Doc. 59 at 6, 33 n.6).
That
McCollough cannot recall the name of the supervisor, whom she described as an
“African American man [with] an accent” and explained was not Huddleston’s
regular supervisor (Doc. 46-4 at 3), years later does not create a genuine issue as to
whether McCollough verbally reported Cofield’s complaint. Curry also claims the
USDA disputes that McCollough verbally reported Cofield’s complaint to
Huddleston’s supervisor.
(Id.).
To support her claim, she cites Dr. Huie’s
deposition testimony that if McCollough had informed Huddleston’s supervisor of
Cofield’s complaint there would be a written record. (Doc. 45-3 at 59). However,
Dr. Huie clarified this testimony by explaining he would have received any written
complaint, but that it was possible for a USDA supervisor to receive a verbal
complaint and resolve the issue without escalating it to him. (Id.). Dr. Huie also
testified a USDA supervisor would have spoken with Huddleston about any
complaint received about him harassing Cofield (Doc. 45-3 at 59), and Huddleston
testified no one ever spoke with him about Cofield’s complaint (Doc. 45-2 at 38).
This may allow the inference the USDA did not act on McCollough’s verbal
34
report, but it is insufficient to create a genuine factual dispute as to whether
McCollough made the verbal report.
Whatever action McCollough took in response to Cofield’s complaint, Curry
argues more could and should have been done: Curry claims McCollough had an
obligation to report Cofield’s complaint up the chain of command within Koch
Foods, should have investigated Cofield’s complaint, and should have lodged a
written complaint with the USDA to trigger an agency review under FSIS
Directive 4735.7, and that Koch Foods could have appealed any unsatisfactory
outcome of an agency review under the Directive or sought an injunction from a
federal court prohibiting Huddleston from working as a USDA Inspector at the
Ashland plant. (Doc. 50 at 32-34).
Although Wright and Cisne did testify McCollough should have reported
Cofield’s complaint to Cisne (Doc. 45-4 at 7; Doc. 45-6 at 35-36), McCollough’s
failure to escalate the complaint to her superior is insufficient to create a genuine
issue as to whether the action she did take in response to the complaint was
reasonably calculated to prevent further harassment by Huddleston.
FSIS Directive 4735.7 expressly contemplates that an establishment such as
Koch Foods may make a verbal complaint regarding an agency employee to that
employee’s supervisor for resolution at the local level. (Doc. 46-1 at 119; Doc. 462 at 1).
In fact, the Directive advises “[r]esolution at the lowest possible
35
supervisory level is desirable and encouraged.” (Doc. 46-2 at 1). Notwithstanding
the plain language of the Directive, Curry claims Dr. Huie testified a complaint
against a USDA Inspector had to be in writing and given to the USDA. (Doc. 50 at
33). This was Dr. Huie’s initial testimony. (Doc. 45-3 at 28). However, as
discussed above, Dr. Huie later in his deposition clarified it was possible for a
USDA supervisor to receive a verbal complaint about an agency employee and
resolve that complaint at the local level. (Id. at 59). This testimony is consistent
with the plain language of the Directive.
Curry cites FPL Food, LLC v. U.S. Dep’t of Agric., 671 F. Supp. 2d 1339
(S.D. Ga. 2009), to support her claim Koch Foods could have exhausted its
administrative remedies under the Directive or sought an injunction from a federal
court prohibiting Huddleston from working as a USDA Inspector at the Ashland
plant. (Doc. 50 at 33-35). That case involved a variety of claims brought by a beef
processing plant against the USDA and one of its inspectors based on allegations
the inspector sexually harassed and retaliated against the plant’s employees. FPL
Food, 671 F. Supp. 2d at 1342.
In dismissing the processor’s claim for a
declaration the inspector’s continued harassment of the processor’s employees
would subject the processor to Title VII liability, the court held the processor did
not legitimately face that liability because its exhaustion of administrative
remedies under FSIS Directive 4735.7 and vigorous prosecution of a complex
36
lawsuit to remove the inspector from its premises constituted “much more
forceful” corrective action than what the Eleventh Circuit has held sufficient. Id. at
1356. Although FPL Food may provide examples of actions an employer may
attempt to take in response to allegations a government inspector has harassed its
employee, it does not stand for the proposition an employer must take those actions
to satisfy the requirements of Title VII. 11
Ultimately, the flaw in Curry’s argument that McCollough and Koch Foods
could and should have done more in response to Cofield’s complaint is that the
availability of different, additional, or more aggressive corrective actions does not
demonstrate the response was unreasonable for purposes of imposing Title VII
liability on Koch Foods for Huddleston’s later harassment of Curry. Title VII does
not require an employer to take the most effective action to avoid liability. Fuller
11
In reply to Curry’s citation to FPL Foods, Koch Foods notes the court in that case dismissed
the processor’s claim for a declaratory judgment on the additional ground the processor’s
relationship the inspector was probably too remote to subject it to liability for the inspector’s
acts. (Doc. 52 at 24-27). To the extent Koch Foods attempts to argue there are no circumstances
under which it could incur Title VII liability for Huddleston’s harassment of Curry by virtue of
the nature of its relationship with the USDA, the undersigned rejects that argument for two
reasons. First, Koch Foods did not raise the argument in its initial brief, which focused on the
action Koch Foods took following Curry’s December 1, 2015 complaint. See Herring v. Sec’y,
Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (noting the Eleventh Circuit has repeatedly
admonished that arguments raised for the first time in a reply brief are not properly before a
reviewing court). Second, Koch Foods has failed to submit evidence sufficient to allow a
determination of the remoteness of its relationship with Huddleston. See FPL Foods, 671 F.
Supp. 2d at 1356-57 (finding processor’s relationship with inspector was involuntary and
disadvantageous where complaint’s allegations demonstrated processor could not avoid inspector
if it wanted to conduct its business lawfully, inspector’s misconduct caused processor economic
harm, and processor preferred to have different inspector stationed at plant).
37
v. Caterpillar, Inc., 124 F. Supp. 2d 610, 617 (N.D. Ill. 2000); see also Zupan v.
State of Illinois, 1999 WL 281344, at *5 (N.D. Ill. Mar. 30, 1999) (for this reason,
rejecting employee’s argument that “immediate and appropriate corrective action”
standard required employer to transfer alleged harasser out of building where
employee worked); cf. Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d
1287, 1306 (11th Cir. 2007) (noting “[a sexual harassment] complainant does not
get to choose the remedy”). It requires an employer to take action reasonably
likely to prevent a recurrence of the harassment. See., e.g., Kilgore, 93 F.3d at
754; Paroline, 879 F. 2d at 107. With respect to Cofield’s complaint against
Huddleston, Koch Foods did.
Finally, the fact that Huddleston later harassed Curry does not necessarily
render the response to Cofield’s earlier complaint against Huddleston
unreasonable. See Baldwin, 480 F.3d at 1305 (noting it is enough if the corrective
action is reasonably likely to prevent the harassment from recurring because “with
human beings there are no guarantees”).
The Seventh Circuit’s decision in
Longstreet is instructive on this point. In that case, the plaintiff argued she would
not have become the victim of a co-worker’s harassment if her employer had
responded more vigorously to a prior incident where the co-worker had offered
another co-worker $100 to “ ‘suck his dick’” and $200 to have sex with him.
Longstreet, 276 F.3d at 382-83. The court rejected this argument after finding that
38
the employer’s response to the prior incident – reassignment of the harasser, which
resolved the harassed co-worker’s problems with him – was reasonable. Id. The
court reasoned “[i]t would push the role of deterrence too far to say that a response
which seemed to be within the realm of reasonableness in one situation can, if
ultimately it did not have the proper deterrent effect, be the sole basis for liability
in another case . . . .” Id. at 382.
Curry essentially makes the same argument as
the plaintiff in Longstreet, and this argument fails for the reasons articulated by the
court in that case. See also Stancombe v. New Process Steel LP, 652 F. App’x 729,
736-37 (11th Cir. 2016) (holding there was no basis for imposing liability on
employer for employee’s conduct where, inter alia, plaintiff did not show
employer had failed to respond appropriately to prior complaints against
employee).
For the foregoing reasons, Koch Foods’ response to Cofield’s May 2014
complaint against Huddleston is not a basis for imposing liability on Koch Foods
for Huddleston’s subsequent harassment of Curry.
b. Failure to Take Action on November 2015 Complaint
Curry also identifies Koch Foods’ response to her November 2015
complaint as a basis for holding it liable for Huddleston’s harassment. (Doc. 50 at
35-38). She argues Koch Foods had actual notice of the harassment in early
November 2015 but did nothing, allowing it to escalate into the threatening
39
confrontation in which the book incident culminated. (Id.). There is evidence that
would allow a reasonable jury to conclude likewise.
In early November 2015, Curry told Richey that Huddleston was making
sexual comments to her and sexually harassing her and she did not want to work
with him. (Doc. 45-1 at 29, 31, 35). Curry told Richey everything Huddleston had
said to her and also told Richey that Huddleston had simulated oral sex. (Id.at 39,
46). Richey spoke with Hawkins about Curry’s complaint. (Doc. 45-7 at 16).12
Koch Foods’ Equal Employment Opportunity and Harassment Policy permits an
employee to report harassment by “any [] person with whom the employee has
contact as a result of their employment,” orally or in writing, and designates a
number of individuals for receiving harassment complaints, including a Shift
Manager. (Doc. 46-2 at 78). A reasonable jury could conclude Curry’s report to
Hawkins through Richey substantially complied with Koch Foods’ procedure for
reporting harassment and put Koch Foods on actual notice of Huddleston’s sexual
harassment. See Henson, 682 F.2d at 905 (noting actual notice is established
where employee shows she complained to management); Watson, 324 F.3d at 1259
12
In a footnote, Koch Foods summarily states it disputes Curry told Richey or Hawkins before
December 1, 2015, that Huddleston was sexually harassing her. (Doc. 44 at 30 n.4). However,
Koch Foods does not dispute the evidence Curry offered regarding the substance or timing of her
report to Richey or whether Richey relayed the report to Hawkins. (Doc. 50 at 13-14; Doc. 52 at
7). Moreover, Koch Foods acknowledges this evidence must be viewed in the light most
favorable to Curry at this stage of the litigation. (Doc. 44 at 30 n.4).
40
(noting actual notice is established where plaintiff followed employer’s clear,
published policy for reporting harassment). 13
Two or three days after Curry complained to Richey, Hawkins asked Curry
to give him a few days to see what he could have done and told her that he would
get back to her. (Doc. 45-1 at 31, 35-36). However, neither he nor anyone else
took any action on Curry’s November 2015 complaint. A reasonable jury could
find that Koch Foods should have ensured Curry did not work on the same stand as
Huddleston immediately after she made her November 2015 complaint, as it did in
response to her December 1, 2015 complaint, thereby preventing the book incident,
which was arguably Huddleston’s most egregious conduct. See, e.g., Williamson v.
City of Houston, Texas, 148 F.3d 462, 465-67 (5th Cir. 1998) (rejecting employer’s
argument it did not have notice plaintiff was being sexually harassed until she
filed formal complaint and took prompt remedial action at that time, where
employer had notice of the harassment prior to that complaint); Bales v. Wal-Mart
Stores, Inc., 143 F.3d 1103, 1110 (8th Cir. 1998) (holding reasonable jury could
have found employer failed to take appropriate steps to remedy sexual harassment,
where plaintiff complained to supervisor about co-worker’s harassment and
supervisor reported those complaints to management, but no action was taken until
13
Koch Foods does not argue Curry’s November 2015 report to Richey was not substantively or
procedurally sufficient to put Koch Foods on actual notice Huddleston was sexually harassing
Curry.
41
after incident described as proverbial “last straw” occurred months later); Howard
v. Burns Bros., Inc., 149 F.3d 835, 841 (8th Cir. 1998) (holding reasonable jury
could have found employer failed to put a stop to sexual harassment promptly,
where plaintiff had complained to manager about harassment long before incident
that resulted in manager taking action against harasser).
In sum, Curry has submitted evidence that would allow a reasonable jury to
conclude she was subject to sexual harassment sufficiently severe or pervasive to
alter the terms and conditions of her employment and create a discriminatorily
abusive working environment and that Koch Foods failed to take sufficient
corrective action after receiving actual notice of the harassment in November 2015.
Therefore, Koch Foods’ motion for summary judgment on Curry’s “hostile work
environment” sexual harassment claim is due to be denied.
B. Retaliation
Title VII and § 1981 both prohibit discriminatory retaliation. See Barnett v.
Athens Reg’l Med. Ctr., Inc., 550 F. App’x 711, 713-14 (11th Cir. 2013).14 Absent
direct evidence of retaliation, courts use the burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to analyze retaliation
claims. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). 15
14
Title VII prohibits retaliation based on a variety of protected categories, including race and
sex, while § 1981 protects against race-based retaliation. See Summers v. City of Dothan,
Alabama, 444 F. App’x 346, 351(11th Cir. 2011).
15
There is no direct evidence of discriminatory retaliation here.
42
Under this framework, a plaintiff must first establish a prima facie case of
retaliation under either statute by showing (1) she engaged in a protected activity,
such as reporting discrimination, (2) she suffered an adverse employment action,
and (3) there was a causal connection between the protected activity and the
adverse employment action. Barnett, 550 F. App’x at 714. In the retaliation
context, an adverse employment action is one a reasonable employee would have
found materially adverse. Id. (citing Burlington N. & Santa Fe Ry. v. White, 548
U.S. 53, 68 (2006)). An employment action is materially adverse if it might well
have dissuaded a reasonable employee from making or supporting a discrimination
charge. Id. (citing Burlington N. & Santa Fe Ry., 548 U.S. at 68). If the plaintiff
establishes a prima facie case of retaliation, the burden shifts to the defendant to
articulate a legitimate, non-retaliatory reason for the challenged employment
action. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2011). If
the defendant does so, the burden shifts back to the plaintiff to show the proffered
reason is pretextual. Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d
1344, 1348 (11th Cir. 2007).
In her complaint, Curry alleged that in retaliation for reporting Huddleston
sexually harassed her and told her “monkeys don’t stop my show,” she suffered
materially adverse employment actions when Koch Foods moved her for the last
43
thirty minutes of her shift and constructively discharged her. (Doc. 1 at 11).16
Koch Foods argues Curry cannot demonstrate the move was a materially adverse
employment action and that, regardless, Koch Foods has articulated a legitimate,
non-retaliatory reason for the action – to separate Curry from Huddleston in
response to her claim he had sexually harassed her. (Doc. 44 at 33-36). Koch
Foods also argues Curry cannot demonstrate she was constructively discharged.
(Id. at 28-29, 35). Curry makes no argument in opposition to Koch Foods’ motion
for summary judgment on her retaliation claim.
Transferring an employee to a different position may constitute a materially
adverse employment action if it involves a reduction in pay, prestige, or
responsibility. Corbett v. Beseler, 635 F. App’x 809, 818 (11th Cir. 2015) (citing
Hinson v. Clinch Cty., Georgia Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000)).
While Curry did not think she should be the one to move production lines and
experienced embarrassment when making the move thirty minutes prior to the end
of her shift, she admitted she performed the same job and received the same pay on
the other line. (Doc. 45-1 at 49, 51-53). Because Curry did not suffer any
reduction in pay, prestige, or responsibility, her transfer to a different production
line for the last thirty minutes of her shift cannot constitute a materially adverse
employment action for purposes of maintaining a retaliation claim. Moreover,
16
The Eleventh Circuit has noted the term “monkey” may constitute a racial slur that supports a
race-based harassment claim. Jones, 683 F.3d at 1297 (collecting cases).
44
Koch Foods has articulated a legitimate, non-retaliatory reason for moving Curry
for the last thirty minutes of her shift. Curry offers no evidence or argument this
reason is pretext. See Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11th
Cir. 2000) (noting that if plaintiff does not proffer sufficient evidence to create
genuine issue of material fact as to whether defendant’s articulated reason is
pretextual, defendant is entitled to summary judgment on plaintiff’s claim).
Instead, she testified it was her understanding Koch Foods moved her so she did
not have to work around Huddleston and that she did not think Koch Foods moved
her to punish her. (Doc. 45-1 at 53).
Constructive discharge also may constitute a materially adverse employment
action. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1240 (11th Cir. 2001).
Constructive discharge occurs when an employer deliberately makes an
employee’s working conditions intolerable, thereby forcing the employee to quit.
Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009). To prove constructive
discharge, a plaintiff must show her work environment and the conditions of her
employment were so unbearable a reasonable person would be compelled to quit.
Id. The severity or pervasiveness of harassment required to prove constructive
discharge is greater than that required to prove a hostile work environment.
Landgraf v. USI Film Products, 968 F.2d 427, 430 (5th Cir. 1992), aff’d, 511 U.S.
244 (1994); see also Bryant, 575 F.3d at 1298 (“Establishing a constructive
45
discharge claim is a more onerous task than establishing a hostile work
environment claim.”).
After Curry made her December 1, 2015 complaint, Koch Foods separated
Curry from Huddleston, and Huddleston made only one additional harassing
comment to Curry. Curry remained at Koch Foods until she accepted a job with
another employer in June 2016. (Doc. 45-1 at 14-15). Under these circumstances,
Curry has failed to produce sufficient evidence the conditions under which she
worked at Koch Foods’ Ashland plant were so intolerable she was required to
resign or that any reasonable person would have been compelled to do so. See,
e.g., Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1317-18 (11th Cir. 1989)
(affirming district court’s holding plaintiffs were not constructively discharged,
where harasser was reprimanded several weeks before plaintiffs resigned and
plaintiffs alleged only one additional incident of harassment occurred after
reprimand); Landgraf, 968 F.2d at 430-31 (holding a reasonable employee would
not have felt compelled to resign after measures reasonably calculated to stop the
harassment were implemented), aff’d, 511 U.S. 244 (1994); Johnson v. Wal-Mart
Stores, Inc., 987 F. Supp. 1376, 1393 (M.D. Ala. 1997) (holding plaintiff’s
constructive discharge claim was not reasonable, where alleged harassment ceased
more than two months before plaintiff’s resignation); Clark v. Johnson Controls
World Servs., 939 F. Supp. 884, 891 (S.D. Ga. 1996) (holding plaintiff failed to
46
establish she was constructively discharged, where she had no contact with
harasser after he was told to stay away from her and did not allege her job was
affected in any way), aff’d, 124 F.3d 222 (11th Cir. 1997).
For the foregoing reasons, Koch Foods’ motion for summary judgment on
Curry’s retaliation claims is due to be granted.
C. Negligence
Sexual harassment is not an independent cause of action under Alabama law.
Stevenson v. Precision Standard, Inc., 762 So. 2d 820, 825 (Ala. 1999) (describing
this as well-settled).
Instead, allegations of sexual harassment are redressed
through common law tort claims. Id. The Alabama Supreme Court has identified
assault and battery, invasion of privacy, negligent training and supervision, and
outrage as examples of those claims. Id. It has also held the manner in which a
sexual harassment complaint is handled when sexual harassment has, in fact,
occurred may form the basis of a negligent supervision claim. Id.
In her complaint, Curry claims Koch Foods had a duty to remedy and
prevent sexual harassment of its employees by third parties and breached that duty
after learning Huddleston was sexually harassing females working at its Ashland
plant. (Doc. 1 at 13). Her summary judgment briefing makes clear Koch Foods’
handling of Cofield’s 2014 complaint is the primary basis for the alleged breach.
(Doc. 50 at 38-40). Liberally construing that briefing, Koch Foods’ lack of action
47
in response to Curry’s November 2015 complaint is another basis for the alleged
breach. (Id. at 40).17 In light of Alabama law regarding claims available to redress
sexual harassment allegations and Curry’s summary judgment briefing, the
undersigned construes the negligence claim Curry asserts against Koch Foods as
one for the negligent supervision of McCollough, the Koch Foods’ employee
involved in Cofield’s 2014 complaint, as well as Richey and Hawkins, the Koch
Foods’ employees involved in Curry’s November 2015 complaint.
A claim for negligent supervision under Alabama law generally requires
proof an employer knew or should have known of an employee’s alleged
incompetency. Southland Bank v. A&A Drywall Supply Co., Inc., 21 So. 3d 1196,
1214-16 (Ala. 2008).
An employer’s actual knowledge of an employee’s
incompetency may be established by showing specific misdeeds of the employee
had been brought to the employer’s attention.
Armstrong Bus. Servs., Inc. v.
AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001). An employer’s constructive
knowledge may be established by showing an employee’s misdeeds were of such
nature, character, and frequency that they must have been brought to the
employer’s attention.
Id.
Moreover, an employee’s mistake or single act of
negligence does not establish incompetence. Southland Bank, 21 So. 3d at 1216.
17
This liberal construction is based on Curry’s reference to Koch Foods’ “complete failure to
pursue the options available to it either in 2014 or in 2015 . . . .” (Doc. 50 at 40 (emphasis
added)).
48
“Negligence is not synonymous with incompetency. The most competent may be
negligent.” Pritchett v. ICN Med. All., Inc., 938 So. 2d 933, 941 (Ala. 2006)
(internal quotation marks omitted). Negligence sufficient to render an employee
incompetent must be habitual. Id.
Curry has offered no evidence or argument McCollough, Richey, or
Hawkins committed misdeeds so great in number or grievous in nature as to render
any of these employees incompetent or that Koch Foods had actual or constructive
knowledge of any such incompetence.
Therefore, Koch Foods’ motion for
summary judgment on Curry’s negligence claim is due to be granted.
D. Intentional Torts
Curry asserts claims for invasion of privacy and assault against Huddleston
and seeks to hold Koch Foods liable for Huddleston’s tortious conduct on the
theory Huddleston was Koch Foods’ agent and Koch Foods ratified his conduct.
(Doc. 1 at 12-14).
1. Invasion of Privacy
The invasion of privacy tort consists of four distinct wrongs, each with
distinct elements. S.B. v. Saint James School, 959 So. 2d 72, 90 (Ala. 2006) (citing
Johnson v. Fuller, 706 So. 2d 700, 701 (Ala. 1997)). Curry proceeds under the
“wrongful intrusion” prong of the tort. A plaintiff asserting this type of invasion of
privacy claim based on allegations of sexual harassment must show “(1) that the
49
matters intruded into are of a private nature; and (2) that the intrusion would be so
offensive or objectionable that a reasonable person subjected to it would
experience outrage, mental suffering, shame, or humiliation.” Ex parte Atmore
Cmty. Hosp., 719 So. 2d 1190, 1194 (Ala. 1998) (citing Busby v. Truswal Sys.
Corp., 551 So. 2d 322, 323 (Ala. 1989)); see also McIsaac v. WZEW-FM Corp.,
495 So. 2d 649, 651 (Ala. 1986) (defining “wrongful intrusion” species of invasion
of privacy claim as “the wrongful intrusion into one’s private activities in such a
manner as to outrage or cause mental suffering, shame, or humiliation to a person
of ordinary sensibilities”).
In Phillips v. Smalley Maintenance Servs., Inc., the Alabama Supreme Court
held the elements of an invasion of privacy claim were met where the plaintiff was
subjected to intrusive demands and threats of a sexual nature from her employer
two or three times each week, including an inquiry as to the nature of sex between
her and her husband, and these intrusions were made in a manner the court
described as repulsive, including by striking the plaintiff’s buttocks. 435 So. 2d
705, 711 (Ala. 1983). Then in Busby, the court held a reasonable jury could
determine the plaintiffs’ supervisor intruded into the plaintiffs’ sex lives in an
offensive and objectionable manner where the supervisor repeatedly directed lewd
remarks and gestures toward the plaintiffs, attempted to follow one of the plaintiffs
into the restroom and did follow one of the plaintiffs one night, openly stared at the
50
plaintiffs’ sexual anatomy, put his arm around the plaintiffs, grabbed the plaintiffs’
arms, and stroked the plaintiffs’ necks. 551 So. 2d at 324. Finally, in Ex parte
Atmore Cmty. Hosp., the court held testimony the plaintiff’s co-worker made
several lewd comments to the plaintiff, asked the plaintiff to meet him outside of
work hours for other than business purposes, and looked up the plaintiff’s skirt on
more than one occasion constituted substantial evidence the co-worker had invaded
the plaintiff’s privacy. 719 So. 2d at 1194.
Guided by Phillips, Busby, and Ex parte Atmore Cmty. Hosp., the evidence
Huddleston propositioned Curry for oral sex, including through the use of a lewd
gesture; made a graphic inquiry about her female anatomy; commented on her sex
life; questioned her sexual orientation several times; asked her to send him
photographs of herself; suggested he could reach over and bite her lip; repeatedly
attempted to initiate conversations with her about the sexual content of a book he
insisted on loaning her; and, ultimately, made a graphic threat of sexual violence
toward her would allow a reasonable jury to conclude Huddleston intruded on
Curry’s private affairs in a manner so offensive and objectionable as to cause a
reasonable person outrage, mental suffering, and humiliation. See also Scott v.
Estes, 60 F. Supp. 2d 1260, 1275 (M.D. Ala. 1999) (holding the plaintiff stated a
claim for invasion of privacy by alleging the defendant repeatedly conditioned her
receipt of a promotion on giving in to his sexual advances and that he sexually
51
assaulted her); Johnson v. Wal-Mart Stores, Inc., 987 F. Supp. 1398, 1404-05
(M.D. Ala. 1997) (holding the defendant’s attempts to kiss or fondle the plaintiff,
his physical altercation with her in his office, and his subsequent and repeated
comments about her appearance and dress could form the basis of a claim for
invasion of privacy); cf. McIsaac, 495 So. 2d at 651 (affirming grant of summary
judgment in defendants’ favor on invasion of privacy claim where evidence
showed that plaintiff’s boss asked her to have an affair with him, looked at her
suggestively, tried to kiss her, touched her arm, and put his arm around her); Austin
v. Mac-Lean Fogg Co., 999 F. Supp. 2d 1254, 1264 (N.D. Ala. 2014) (holding no
reasonable jury could find supervisor liable for the tort of invasion of privacy
based on his single sexual proposition of the plaintiff).
Huddleston argues an invasion of privacy claim requires evidence of both
ongoing, persistent verbal harassment and unwanted physical contact. (Doc. 38 at
8). Decisions of this district court have noted that Alabama courts have generally
required invasion of privacy claims to allege both ongoing, persistent verbal
harassment and unwanted physical contact. Austin, 999 F. Supp. 2d at 1263; Rose
v. SMI Steel LLC, 18 F. Supp. 3d 1317, 1321-22 (N.D. Ala. 2014); Whitt v.
Berckman’s Foods, Inc., 2018 WL 1399263, at *7 (N.D. Ala. Mar. 20, 2018). The
evidence Huddleston intentionally brushed Curry’s breast when reaching for
something – even if this contact was momentary and whether Curry reported it in
52
November or December 2015 – together with his physically threatening comments
and conduct surrounding the book incident, satisfies any requirement of unwanted
physical contact.
For the foregoing reasons, Huddleston’s motion for summary judgment on
Curry’s invasion of privacy claim is due to be denied.
2. Assault
Under Alabama law, “ ‘[a]ssault’ has been defined as an intentional,
unlawful, offer to touch the person of another in a rude or angry manner under
such circumstances as to create in the mind of the party alleging the assault a wellfounded fear of an imminent battery, coupled with the apparent present ability to
effectuate the attempt, if not prevented.” Wood v. Cowart Enterprises, Inc., 809
So. 2d 835, 837 (Ala. Civ. App. 2001) (internal quotation marks omitted)
(emphasis omitted). Words standing alone do not constitute assault. Allen v.
Walker, 569 So. 2d 350, 351 (Ala. 1990); Holcombe v. Whitaker, 318 So. 2d 289,
294 (Ala. 1975). Words together with a show of force or other action may be
sufficient to support an assault claim. Allen, 569 So. 2d at 351; Holcombe, 318 So.
2d at 294.
Huddleston threatened to “knock [Curry’s] ass out” and “shove [his] dick so
far up [her] [it] [would] come out [her] throat.” (Doc. 45-1 at 31-32). Curry
testified that when Huddleston made these threats, she thought he was going to
53
hurt her. (Id. at 34). She also testified that when Huddleston made one or both of
these threats, he “was at [her] face,” “was so mad and red,” was “really, really
serious,” and was not far from a knife with which she worked.
(Id.).
The
substance of Huddleston’s threats, together with Curry’s testimony regarding her
perception of Huddleston’s ability to physically harm her and the manner in which
Huddleston made the threats, would allow a reasonable jury to conclude
Huddleston assaulted Curry.
The defendants argue Curry did not have a well-founded fear Huddleston
would carry out either of his threats. (Doc. 38 at 7; Doc. 44 at 42). They
emphasize her testimony “[she] [couldn’t] say [she] thought he was going to [carry
out one or more of the threats].” (Doc. 38 at 7; Doc. 44 at 42). Curry finished that
sentence by testifying, “but he might have . . . he could have done anything.”
(Doc. 45-1 at 34). One reasonable interpretation of Curry’s testimony as a whole
regarding the threats would be that while Curry did not believe Huddleston was
going to carry out the threats literally, she believed he was going to physically
harm her in some way. This interpretation – a view of the evidence most favorable
to Curry, as required at this stage of the proceedings – supports Curry’s assault
claim.
The defendants also argue Huddleston did not have the apparent present
ability to carry out either threat. (Doc. 38 at 7-8; Doc. 44 at 42). Huddleston notes
54
that when he made the threats, Curry was wearing steel-toed boots and had a long,
sharp knife in her dominant hand and a full-coverage, chainmail-type glove on the
other hand, while he was not holding a knife. (Doc. 38 at 8). He also notes Curry
testified he had told her “his dick didn’t work.” (Id.). Koch Foods notes that after
Huddleston’s final threat, Curry shoved or slung the book toward Huddleston and
loudly told Huddleston to “get out of [her] motherfucking face.” (Doc. 44 at 42;
Doc. 52 at 31-32). Some of this evidence merely underscores that there is a
question of fact for resolution by a jury. Although it may cut against a finding that
Curry had a well-founded fear Huddleston would harm her or that Huddleston had
the present ability to do so, Curry has submitted sufficient conflicting evidence to
create a jury question on her assault claim. See Allen, 569 So. 2d at 351-52
(holding defendant’s act of shaking his finger in plaintiff’s face, followed by his
threats to “whip [the plaintiff’s] ass anytime, anywhere,” created jury question on
assault claim, even though there was evidence plaintiff may have discounted
threat); Holcombe, 318 So. 2d at 294 (holding that whether evidence was sufficient
to arouse apprehension of harm or offensive conduct and whether defendant had
apparent ability to effectuate threatened act were questions for the jury); Surrency
v. Harbison, 489 So. 2d 1097, 1104 (Ala. 1986) (“When there is conflicting
evidence . . . the issue of whether there was, in fact an assault and battery at all is a
question for the jury.”).
55
Whether Huddleston was physically capable of sexually assaulting Curry,
Curry has presented sufficient evidence to create a jury question as to whether
Huddleston had the present ability to physically harm her in some other way.
Finally, it is unclear how Curry’s act of shoving or slinging the book toward
Huddleston and cursing at him in response to his graphic threat of sexual violence
would negate any aspect of her assault claim, but in any event, that is a question
for the jury to consider.
For the foregoing reasons, Huddleston’s motion for summary judgment on
Curry’s assault claim is due to be denied.
3. Koch Foods’ Liability
An employer is liable for intentional torts committed by its employee or
agent if (1) the employee or agent committed the tort in furtherance of the
employer’s business, (2) the employee or agent committed the tort within the line
and scope of his employment, or (3) the employer participated in, authorized, or
ratified the tort. Id. at 1194; Potts v. BE&K Const. Co., 604 So. 2d 398, 400 (Ala.
1992).
Agency may not be presumed. Dickinson v. City of Huntsville, 822 So. 2d
411, 416 (Ala. 2001). A plaintiff must present substantial evidence of an agency
relationship.
Id.
An agency relationship may be demonstrated by actual or
56
apparent authority. John Deere Const. Equip. Co. v. England, 883 So. 2d 173,
178-79 (Ala. 2003).
The test for determining the existence of an agency relationship based on
actual authority is whether the alleged principal exercised the right to control the
alleged agent’s performance. Id. at 178 (citing Malmberg v. American Honda
Motor Co., Inc., 644 So. 3d 888, 890 (Ala. 1994)). Curry claims Huddleston
possessed actual authority over Inspector Helpers, including her. (Doc. 50 at 43).
To the extent this claim is intended as an argument Huddleston was Koch Foods’
actual agent, it fails.
Curry points to no evidence that would support a
determination Koch Foods had any right to control Huddleston’s performance.
The test for determining the existence of an agency relationship based on
apparent authority is whether the alleged principal held the alleged agent out to
third parties as having the authority to act.
Bain v. Colbert Cty. Northwest
Alabama Health Care Auth., 233 So. 3d 945, 956 (Ala. 2017) (citing Malmberg,
644 So.3d at 891). Additionally, the third party’s belief an individual was the
principal’s agent must have been objectively reasonable. Bain, 233 So. 3d at 95657 (citing Brown v. St. Vincent’s Hosp., 899 So. 2d 227, 239 (2004)). Finally, the
third party must have actually relied on the individual’s apparent authority. Id.
(citing Brown, 899 So. 2d at 237).
57
Curry argues Huddleston was Koch Foods’ apparent agent because Koch
Foods held out Huddleston as having the right to direct her work and the work of
other Inspector Helpers. (Doc. 50 at 43). To support this argument, she cites Koch
Foods’ job description for Inspector Helpers, which states these Koch Foods’
employees “follow the government inspector’s instructions to properly mark and/or
pull below standard birds from the processing line.” (Doc. 46-2 at 119). It is
doubtful a private enterprise’s instruction to its employee that the employee must
follow the directions of a government regulator the enterprise is required to have
on its premises makes the government regulator an agent of the private enterprise.
However, determination of the issue is unnecessary. Even if Huddleston was Koch
Foods’ apparent agent, Curry has failed to demonstrate her reliance on that agency.
She makes no argument she relied on the appearance Huddleston was Koch Foods’
agent and falls far short of presenting more than a scintilla of evidence of reliance.
Absent evidence Huddleston was Koch Foods’ agent, there is no basis for holding
Koch Foods’ liable for Huddleston’s intentional torts. Accordingly, Koch Foods’s
motion for summary judgment on Curry’s invasion of privacy and assault claims is
due to be granted.
IV. CONCLUSION
For the foregoing reasons, Koch Foods’ motion for summary judgment
(Doc. 43) is DENIED as to Curry’s “hostile work environment” sexual harassment
58
claim. The motion is GRANTED as to Curry’s retaliation, negligence, invasion of
privacy, and assault claims, and those claims against Koch Foods are DISMISSED
WITH PREJUDICE. Huddleston’s motion for summary judgment (Doc. 37) is
DENIED.
DONE this 20th day of March, 2019.
______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
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