Moat v. Aaron's, Inc.
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 11/12/2014. (JLC)
2014 Nov-12 AM 09:32
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
PAULA JANET MOAT,
) Case No.:4:13-CV-181-VEH
INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Paula Janet Moat (“Moat”) initiated this action by filing a complaint
on January 25, 2013, against defendant Aaron’s, Inc. (“Aaron’s) alleging a sexually
hostile work environment in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 200e, et seq. (“Title VII”). (Doc. 1). Moat amended her
complaint on July 23, 2013, to add a claim against Aaron’s for retaliation in response
to her complaints to the EEOC. (Doc. 15). The lawsuit stems from alleged sexual
comments and gestures made by a male co-worker (an employee of the defendant)
towards Moat, the management’s failure to respond to Moat’s complaints, and a
variety of actions by the sales manager after Moat’s complaints to the Equal
Employment Opportunity Commission (“EEOC”). (Doc. 1 at ¶¶9-10).
Moat filed her first charge of sex discrimination against Aaron’s with the EEOC
on or around June 25, 2012. (Doc. 7 ¶1). The EEOC issued a Dismissal and Notice of
Rights on October 31, 2012, thereby giving Moat the right to sue. (Id.). On December
3, 2012, Moat filed a second charge with the EEOC against Aaron’s alleging
retaliation in response to her first charge. (Id. at ¶2). After Moat’s complaint with this
court was timely filed on January 25, 2013, the parties, on February 21, 2013, filed
a joint motion to stay the proceedings until the EEOC decided the second charge.
(Doc. 7). This court granted the requested stay. (Doc. 8). On June 4, 2013, the EEOC
issued a dismissal notice of right to sue on the second charge. (Doc. 13 at 2). The stay
was then lifted by the court on July 9, 2013. (Doc. 14).
Now pending before the court is Aaron’s motion for summary judgment filed
on April 14, 2014. (Doc. 32). The parties have briefed and filed evidence relating to
the Motion (Docs. 31-32, 34, 38), and it is now under submission. For the reasons
explained below, the Motion is due to be GRANTED.
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. FED. R . CIV. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute 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). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward with
specific facts showing that there is a genuine issue for trial.’” International Stamp Art,
Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
Hostile Work Environment
Title VII prohibits employers from discriminating “against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). “When the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment, Title VII is
violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations and
quotation marks omitted). To establish a hostile work environment claim, an employee
must show: (1) that she belongs to a protected group; (2) that she has been subject to
unwelcome harassment; (3) that the harassment must have been based on a protected
characteristic of the employee, such as gender; (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) that the employer is
responsible for such environment under a theory of vicarious or of direct liability.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
“Retaliation against an employee who engages in statutorily protected activity
is barred under both Title VII and § 1981.” Chapter 7 Trustee v. Gate Gourmet, Inc.
683 F.3d 1249, 1257-58 (11th Cir. 2012). Further, in Burlington Northern & Santa Fe
Ry. Co. v. White, 548 U.S. 53 (2006), the Supreme Court abrogated prior circuit law,
including that of the Eleventh Circuit, limiting anti-retaliation claims under Title VII
to claims involving actions that are related to employment or that occur at the
workplace. Id. at 2409. Following Burlington Northern, the recognized elements of
a claim of retaliation under Title VII are that the plaintiff: (1) engaged in statutorily
protected activity; (2) suffered a materially adverse action; and (3) there was a causal
connection between the protected activity and the adverse action.
The Eleventh Circuit has explained the standard for establishing the second
prima facie element to a Title VII retaliation claim:
[T]he Supreme Court has defined an adverse employment action in the
context of a retaliation claim as an action by an employer that is
[“]harmful to the point that it could well dissuade a reasonable worker
from making or supporting a charge of discrimination.”
Wallace v. Georgia Dept. of Transp., 212 Fed. App’x 799, 802 (11th Cir. 2006)
(quoting Burlington Northern, 548 U.S. at 57).
Once the prima facie case is made, the employer then has the burden of
showing a legitimate, non-retaliatory reason for the adverse employment actions.
Wallace v. Georgia Dept. Of Transp., 212 Fed. App’x. 799, 800 (11th Cir. 2006). At
that point, the plaintiff then has the burden of proving that the alleged reason for the
action was only a pretext. Id.
STATEMENT OF FACTS
Material Undisputed Facts
Aaron’s Sexual Harassment Policies
Aaron’s maintains a Non-Discrimination and Sexual Harassment Policy (the
“Policy”) expressly stating that the Company “is firmly committed to prohibiting and
preventing discrimination against any associate on the basis of race, color, sex, age
religion, national origin, disability, veteran or other protected status” and that “all
associates have the right to work in an environment free of sexual harassment.” The
Policy also states,
If you feel you have been discriminated against, sexually harassed, or denied
advancement for which you are qualified, you need to call the Employee
Relations Hotline in the Atlanta Home Office toll free at 866-453-5144 to
report any such situation. Your concerns will be investigated promptly and
appropriate remedial action will be taken if violations of our policy are
discovered. Be assured that your call will be treated in the strictest confidence
possible and you will incur no retaliation for reporting good faith claims.
(Doc. 31-1 at 84). Aaron’s Non-Discrimination and Sexual Harassment Policy is
published to employees in Aaron’s Policy Manual and is also posted on the
Company’s intranet. Employees receive copies of this policy at the outset of their
employment and sign acknowledgments that they understand Aaron’s policies,
including the Company’s policies against harassment. In addition, when they clock-in
and clock-out of Aaron’s timekeeping system on a daily basis, employees must
acknowledge a message stating that “To report discrimination/sexual harassment call
1-866-453-5144.” Employees’ pay stubs include the same message.
Managers of Aaron’s stores have a duty to report sexual harassment if they see
it or if someone complains to them about it. The manager is then required to report it
to associate resources, the company’s non-discrimination and sexual harassment
hotline, or his immediate supervisor. If the manager failed to do so, depending on the
situation and the severity, the associate resources department is supposed to make a
report, put something in the manager’s personnel file, and make the manager retake
the sexual harassment training.
Moat’s Employment at Aaron’s
Aaron’s hired Moat as a Customer Service Representative at its Gadsden store
on October 10, 2011. In this role, she was responsible for making and processing instore sales and for organizing customer files. Like all sales representatives at the store,
she was also responsible for maintaining the appearance and upkeep of the store,
including cleaning the store’s showroom and restroom as needed. When she began her
employment with Aaron’s, she received a copy of Aaron’s Policy Manual, including
its Non-Discrimination and Sexual Harassment Policy, and signed a Policy Manual
Acknowledgment form stating,
I understand and acknowledge that I have a copy of the Company’s Policy on
Non-Discrimination, Sexual Harassment and Open Advancement. I understand
that neither a member of management or any fellow associate is authorized to
engage in any conduct that violates this policy and I agree to notify the
Company by calling the toll-free number (800-335-2038) if I witness or believe
I have been subjected to sexual harassment or any other form of
Moat also completed computer-based training programs regarding Aaron’s NonDiscrimination and Sexual Harassment Policy during her employment with Aaron’s.
Moat’s Response disputes another part of this paragraph of Aaron’s statement of facts,
saying “disputed that employees who feel that they have been discriminated against or sexually
harassed have not properly reported the situation to Aaron’s unless they have called the toll-free
Employee Relations hotline.” (Doc. 34 at 2). This does not constitute a denial that the policy
form contained this language nor the fact that Moat signed it. Therefore, the facts as set out in
this paragraph are deemed admitted.
During her employment, Moat failed several “Phone Shops,” which are
unannounced test phone calls from an Aaron’s corporate employee intended to test
how well employees sell merchandise over the phones. In her six-month performance
review, issued on or around March 24, 2012, Moat received an overall score of 2.28
out of 5, which the parties acknowledge is considered “Below Expectations.” Over the
course of her first seven months, she also received written counseling for failing to
complete tasks assigned to her and for failing to meet sales goals.2
At Aaron’s, Moat had a 19 or 20-year-old co-worker named Cody Myers
(“Myers”). Moat joked with him, referred to him as “Little Cody” (while he called her
“Granny Janie”), and at one point hugged him. However, during Moat’s employment,
Myers made frequent sexual propositions and sexually-oriented remarks to her, such
as saying that her husband could not be “good in bed” because of his “kidney-failing
soggy dick,” that he had a low sperm count, and that his girlfriend’s vagina “smelled
like dead butterflies.”3 He also asked her questions about what she and her husband
do during sex and about “booty sex.” Myers was known to similarly ask male
Moat contends that her “lesser sale figures after [she] and her husband complained to
Keeling about the sexual harassment by Myers were the result of her being given excessive and
unusual work duties which kept her away from the sales floor so she could not approach
customers and make as many sales.” (Doc. 34 at 6).
In its Reply to Moat’s Response, Aaron’s objects to all of the factual contentions in
Moat’s “Additional Undisputed Facts” on the grounds that they are immaterial. (Doc. 38).
Whether a statement is material is determined by the court, so an objection on the basis of
immateriality does not make a fact disputed.
employees questions about whether they had or were going to have sex. Myers also
would “hump the air” (to simulate having sex) behind Moat and behind other male
employees in front of her, and would also stick out his tongue at her and male
employees in front of her. At one time, Myers also touched Moat’s ear4 and asked her,
“Do you shave?”
On or about April 1, 2012, Moat’s husband, Stephen Moat (“Mr. Moat”) came
into the Gadsden store and asked to speak with the store’s general manager, Bobby
Keeling (“Keeling”) about Myers. Mr. Moat reported to Keeling that Myers had been
asking Moat about their sex life and requested that Keeling put a stop to the
comments. Keeling had never witnessed any misconduct by Myers and was unaware
until then of the alleged inappropriate comments. This was the first time Keeling had
been informed of anything potentially inappropriate between Moat and Myers.
Keeling took Mr. Moat’s complaint “very seriously” and told Mr. Moat that if there
was anything like that going on, it would stop immediately. Per company policy,
Keeling reported Moat’s complaint to senior regional manager Roger Estep. (Doc. 316). He told Estep that Mr. Moat had accused Myers of talking to his wife about
something of a sexual nature and that Mr. Moat was offended by it.
Keeling then counseled Moat and Myers that, if any inappropriate conversation
This is the only allegation that Moat has made of inappropriate touching by Myers.
was going on, it needed to stop immediately. After this counseling, Myers’s behavior
improved for a while. Mr. Moat later called Keeling and thanked him for his
professional handling of the situation. Keeling believed that the matter had been
resolved.5 At no time did he report these allegations to Jill Reinert, the Associate
Resources Representative at Aaron’s corporate headquarters. Reinert has testified that
Keeling should have notified her, and that she would have begun her investigation at
On July 2, 2012, Mr. Moat came into the Gadsden location of Aaron’s and told
Myers, “If you steal another sale from my wife, we’re going to have problems,” as
well as telling him to stop sexually harassing Moat. (Doc. 31-3 at 7). Myers then
summoned Keeling, who met with Mr. Moat and asked him whether he was
threatening Myers, to which Mr. Moat responded “It’s not a threat; it’s a promise.”
Mr. Moat also informed Keeling that he and Moat had retained an attorney. Keeling
then told Mr. Moat that he could not speak further about the matter if an attorney had
In her Response, Moat responds to this statement of fact by saying “While Keeling may
have believed . . . that the alleged sexual harassment had been resolved, Plaintiff disputes that
Keeling and/or Estep did all that they were required to do to investigate and discipline Myers
under the Aaron’s Non-Discrimination and Sexual Harassment Policy.” (Doc. 34 at 6). The
court’s Uniform Initial Order states that facts “will be deemed to be admitted for summary
judgment purposes unless controverted by the response of the party opposing summary
judgment.” (Doc. 2 at 17). Here, and at many other points in her Response, Moat’s response to
Aaron’s statements of fact does not controvert the fact so much as attempt to head off a possible
inference from that fact that would be unfavorable to her. Therefore, the court deems this fact to
be undisputed and admitted.
Aaron’s Investigation of Moat’s EEOC Charge
On or around June 25, 2012, Moat filed her first charge against Aaron’s with
the EEOC, alleging sexual discrimination and harassment. On July 2, 2012, Aaron’s
corporate headquarter in Atlanta received a copy of that charge. Moat did not utilize
Aaron’s corporate HR hotline to report harassment either before or after filing her
EEOC charge.7 Reinert was assigned to investigate the matter. This was the first time
she had heard of the matter. She contacted Estep, the senior regional manager over the
Gadsden store, to see if he had any knowledge of the matter, but Estep said that he did
not. On July 9, 2012, in accordance with Aaron’s investigative guidelines, Reinert
traveled to the Gadsden store and interviewed Moat and all other employees at that
location. (Doc. 31-11 at 2, 5).
During the interview with Reinert, Moat alleged that Myers made a number of
boorish comments and gestures, including asking her on unspecified occasions “Did
you smash last night?” or if she and her husband were “gonna have sex tonight,”
Moat’s Response “dispute[s] that Plaintiff’s getting an attorney justified Keeling”
declining to speak further. As explained in fn. 4, supra, this response does not dispute the actual
fact asserted by Aaron’s; rather, it makes a separate assertion and so the fact is deemed
undisputed and admitted.
Moat responds to this statement by “disput[ing] that Plaintiff was still required to use
the hotline to report sexual Harassment after Keeling made his report to Mr. Estep.” (Doc. 34 at
7). As explained in fn. 4, supra, this response does not dispute the actual fact asserted by
Aaron’s; rather, it makes a separate assertion and so the fact is deemed undisputed and admitted.
commenting on a single occasion that her husband (who suffers from kidney failure)
could not “be good in bed” because of his “kidney-failing soggy dick,” asking on
single occasions, “Do you shave?” and “Have you ever had bootie sex?,” commenting
on single occasions that he had “low sperm count” and that his girlfriend’s vagina
“smelled like dead butterflies,” and on unspecified occasions making supposedly
sexual gestures (which Moat characterized as “humping the air”), sticking his tongue
out, and standing too close while talking to her. Moat also alleged that Myers engaged
in some of the same behavior toward both male and female employees in the store,
including asking male employees if they “smashed” or were going to have sex,
making the same supposedly sexual gesture (i.e., “humping the air”) behind the backs
of male employees, and sticking his tongue out at male employees.8
Reinert’s investigation came to the following conclusions:
Myers touched Moat inappropriately on the one occasion when he
allegedly touched her ear.
Moat’s allegations of sexual harassment by Myers were not able to be
corroborated by reviewing the store’s video recordings because the
alleged incidents had taken place several months before Reinert’s
Moat's Response disputes "that Myers was simply an ‘equal opportunity harasser' of
men and women at the store." (Doc. 34 at 8). Moat contends,“When Myers would make his
“supposedly” sexual gestures (“hump the air”) behind other employees, or stick his tongue out at
male employees too, Plaintiff was always the only woman around, and he was doing it just to
provoke a response from her.” (Id.). Again, this does not controvert the facts alleged, and so the
facts are admitted. See fn. 4, supra.
investigation. (Doc. 31-11 at 5).9
Myers denied making any of the alleged sexual comments or gestures but
admitted to engaging in inappropriate horseplay in the workplace with
other employees, such as engaging in a choke hold with another
associate, sarcastically saying “I love you” and “Aren’t you adorable” to
male associates, and throwing a kissing in the air to a male associate.
Based on the horseplay Myers admitted to engaging in, Myers had
violated the company’s workplace policies
However, none of the Aaron’s employees, including Myers, were found
to have violated the company’s sexual harassment policies.
Reinert issued Myers a final written warning instructing him that any further violation
of Aaron’s policies would result in termination.
In addition, Aaron’s transferred Myers to a different store on July 26, 2012.
Moat alleges that, a few days before the transfer, Myers stuck his tongue out at men
in the store, “acting like he wanted to kiss them, and then looked at [Myers] to see
how she reacted.” (Doc. 34 at 9). She also alleges that Myers twice returned to the
Gadsden store and “st[ood] around staring at [her] while [she] was doing [her] job - with a smug grin” for about half an hour. Id.
The EEOC’s Investigation of Moat’s Charge10, 11
Moat contends that the “sexual harassment of the Plaintiff by Myers could have been
viewed by Reinert on video” had the investigation been started when Moat and Mr. Moat first
complained to Keeling, who reported it to his supervisor Estep. (Doc. 34 at 8).
In her Response, Moat “disputed that the EEOC’s findings [as well as “the EEOC
investigator’s opinions or conclusions”] are relevant or admissible to prove that Defendant did
On October 31, 2012, the EEOC completed its investigation of Plaintiff’s
charge, finding that it was unable to conclude that the information provided by
Plaintiff established a violation of Title VII. In a Pre-Determination Summary Sheet
issued by the EEOC, the investigator assigned to Plaintiff’s charge concluded as
During the analysis of the documents, they have yielded no evidence to
remotely demonstrate that [Moat] was subjected to any bias [or] discriminatory
action. Rather, the evidence shows that during the relevant time period, [Moat]
received an overall average between “Below Expectation” and “Meets
Expectation”. In addition, the evidence shows that [Moat] received numerous
counseling sessions concerning her poor performance. The evidence has shown
that [Moat] did not use [Aaron’s] hotline with regard to allegedly being
subjected to a sexual hostile environment. [Aaron’s] has a clear and
comprehensive sexual harassment policy that [Moat] was privy to at the time
she was employed. Moreover, once [Moat] made known to management that
alleged sexual harassment had occurred in the work place, [Aaron’s] promptly
investigated the claim. Although the outcome of the investigation yielded no
evidence to corroborate that sexual harassment occurred, [Aaron’s] took
immediate and appropriate action by transferring the alleged male harasser to
another store and issued him a stern disciplinary final written warning. . . .
not violate Title VII.” (Doc. 34 at 8, ¶¶46, 47, 47). This objection is underdeveloped. Insofar as
it questions the admissibility of the EEOC’s decision, it is without merit. The EEOC's final
decision regarding a claim of discrimination is admissible under FED. R. EVID. 803(8)(c),
providing for admissibility of public records and reports setting forth factual findings resulting
from an investigation made pursuant to authority granted by law, unless the source of
information or other circumstances indicate lack of trustworthiness. Chandler v. Roudebush, 425
U.S. 840, n.39 (1976). Insofar as Moat questions the relevancy of the EEOC’s findings, her
conclusory assertion fails to provide any reason to controvert the general assumption in this
circuit that “EEOC reports and findings . . . [are] highly probative.” Barfield v. Orange Cnty.,
911 F.2d 644, 649 (11th Cir. 1990).
The court, however, relied exclusively on its review of the evidence and arguments
presented at summary judgment and gave no weight to the EEOC’s findings.
In summary, there is no evidence to demonstrate that [Moat’s] civil rights have
been violated under any statute enforced by the EEOC.
Unsatisfied with the EEOC’s conclusion, Plaintiff wrote to the EEOC. In
response, the EEOC reaffirmed its original findings, concluding:
There were no indications that further investigation would disclose a violation
of the statute enforced by the EEOC. The evidence of record also did not
indicate that you were discriminated against because of your sex. There was no
evidence that you suffered an adverse employment action as a result of you
filing your charge with the EEOC. You have provided no other evidence that
would warrant a difference [sic] determination. Accordingly, your request for
reconsideration is denied.
Moat’s Charge of Retaliation and Resignation from Aaron’s
Plaintiff spoke to Reinert two or three times after her investigation of the first
charge and told her that Morgan, the sales manager, was giving her more work to do,
giving her unfavorable duties, and being hostile to her. Morgan admits that she asked
Moat to mop the floors and clean the toilets during regular business hours. All
Aaron’s associates are expected to clean toilets and mop floors when necessary, and
Myers and Morgan did so as well at times. (Doc. 31-4 at 27-28; Doc. 31-7 at 21).
Keeling has testified that he “wouldn’t suggest anyone cleaning toilets during business
hours” because that could be done before the store opens or after it closes. (Doc. 31-6
at 22). During the month of June, 2012, sales manager Morgan had 49 sales, Myers,
the other customer sales representative, had 53 sales, and Moat had only 15 sales.
On December 3, 2012, Moat filed another EEOC charge, alleging that Sales
Manager Linda Morgan (“Morgan”) retaliated against her for her first charge by “not
communicating” with her, “not informing [her] about sales or promotional
opportunities in the store,” and giving her “the most undesirable jobs, such as cleaning
the bathroom.” Reinert requested that Plaintiff meet with her to discuss the allegations
in her new charge, but Moat refused to do so.12 While this second EEOC charge was
pending, Moat obtained an offer of employment from another company at a higher
salary than what she earned at Aaron’s. Moat then resigned her employment with
Aaron’s effective January 5, 2013, with three weeks’ advance notice. She worked
through the entirety of her notice period and then began at her new job with no gap
Moat initiated this action on January 25, 2013. At her request, the EEOC issued
her a notice of right to sue on her second charge without a finding. She then amended
her complaint in this action to incorporate the claims asserted in her second EEOC
Material Facts in Dispute
Moat contends that her lesser sales figures after she and her husband
complained to Keeling about the sexual harassment by Myers were the result of her
Moat’s Response says that she refused to speak to Reinert because Morgan had been
hostile to her after each prior time that she spoke with Reinert. (Doc. 34 at 10). This is consistent
with Moat’s deposition, where she testified that every time she spoke to Reinert, Morgan “would
just totally change and start treating [her] worse.” (Doc. 31-1 at 48).
being given excessive and unusual work duties which kept her away from the sales
floor so she could not approach customers and make as many sales. (Doc. 34 at 2122). According to Moat, in retaliation for her EEOC complaints, Morgan would tell
her “more than anyone else to clean the bathroom, vacuum, and take out the trash, and
had her and only her to mop the floor, so she could not sell and make money.” (Id. at
23). She also alleges that when she was with a customer, Morgan would interrupt her
and say that only she [Morgan] could mark the merchandise down so the customer
should come to her. (Id.). Additionally, she claims that Morgan would type up lease
agreements in her own name when Moat had made the sale, and that the managers at
the Gadsden store stopped or delayed helping her close paperwork after she
Moat says that the retaliation by Morgan had begun in April after Plaintiff had
complained to Keeling but before the first EEOC charge was filed in June. (Id. at 22).
She also argues that Reinert did not construe anything in Plaintiff’s first EEOC charge
to allege any type of a retaliation claim and so did not investigate any issues of
Hostile Work Environment
Aaron’s does not dispute that Moat belongs to a protected group (women) or
that she was subject to unwelcome words and conduct from Myers. Aaron’s Motion
argues that, as a matter of law, Moat cannot prove the remaining three required
elements of a hostile work environment claim. (Doc. 32 at 24). These three challenged
elements are: (1) that the harassment was based on a protected characteristic, (2) that
the harassment was sufficiently severe or pervasive to alter the terms and conditions
of employment and create a discriminatorily abusive working environment, and (3)
that the employer is responsible for such environment under a theory of vicarious or
of direct liability. Miller, 277 F.3d at 1275. For the reasons explained below, Aaron’s
motion on this claim is due to be GRANTED.
Moat Cannot Show That The Allegedly Discriminatory
Conduct Was Based On Her Gender
Aaron’s argues that Moat’s hostile work environment claim fails because
Myers’s conduct “was directed equally at both male and female employees and,
therefore, was not because of [Moat’s] sex.” (Doc. 32 at 27) (emphasis in original).
Aaron’s points to Moat’s own testimony that Myers engaged in the same sorts of
boorish behavior (“humping the air” behind and sticking out his tongue at) towards
male employees as towards her, and asked those male employees some similar
questions about their sexual habits.
Title VII prohibits discrimination, including harassment that discriminates
based on a protected category such as sex. Because a claim of sexual
harassment under Title VII is a claim of disparate treatment, in order to prevail
a plaintiff must show that similarly situated persons not of [her] sex were
treated differently and better.
Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1301-02 (11th Cir.
2007) (internal quotation marks, brackets, and citations omitted) (emphasis added).
Moat acknowledges that Myer engaged in such behavior around male coworkers, but argues that, “When Myers would make his sexual gestures [sticking out
his tongue at and “humping the air” behind male employees] [Moat] was always the
only woman around and he was doing it just to provoke a response from her.” (Doc.
34 at 28). This argument asks the court to speculate that the conduct was solely
intended to harass Moat, rather than the male employee who was the apparent
recipient of his gesture. As the nonmoving party, the court will make every reasonable
inference in Moat’s favor, but she is still required to “designate specific facts showing
that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986) (internal quotation marks omitted) (emphasis added).
The fact that Moat was the only woman around Myers when he behaved this
way does not prove that his actions in her presence were directed at her. Attributing
that particular intent to Myers would require, at the very least, evidence that he only
used such words and conduct when she was present, but Moat has not given any
evidence of this. Moat does cite to several portions of her own deposition, but n one
of this testimony alleges any specific facts supporting the conclusion that Myers was
intending to provoke Moat when he did this. (Doc. 31-1 at 27-28). Her testimony
merely asserts this intent in a conclusory fashion, e.g., “I was the only woman around
and it was to see how I reacted,” and “Because I was around and then he would see
how I’m going to react to it.” (Id. at 27).
Myers was disciplined by Aaron’s through a written warning and reassignment
after Reinert’s investigation confirmed horseplay, touching other male employees, and
making inappropriate comments to other male associates. (Doc. 31-11 at 5-7). The
evidence on record leads inescapably to the conclusion that Myers’s crude remarks
and raunchy gestures were directed towards both men and women. Because of that
fact, any harassment of Moat by Myers, as a matter of law, could not be characterized
as discrimination on the basis of her Title VII-protected class, her gender.13
The Issues Of Employer Liability And Severity Or
Pervasiveness Of Conduct Are Not Reached
Aaron’s also argues that summary judgment is due to be granted on Moat’s
Moat also suggests she is raising an alternative argument that this element was
satisfied, citing authority for the proposition, “words and conduct that are sufficiently genderspecific and either severe or pervasive may state a claim of a hostile work environment, even if
the words are not directed specifically at the plaintiff.” (Doc. 34 at 28). She does not explain how
the facts of this case fit into that rule, and the court does not see how any of Myers’s words and
conduct toward the other men can be construed as female-specific; his “humping the air” behind
a male employee and asking other men if they had “smashed” or were planning to have sex did
not have any derogatory connotations against women and not men. Therefore, this alternative
argument has no applicability to the case at hand.
hostile environment claim on the other two challenged elements: that there is no basis
for its liability for any harassment that may have occurred, and that the alleged
harassment was not sufficiently severe or pervasive. (Doc. 32 at 17). Because
summary judgment is due on the basis of Moat’s failure to present evidence sufficient
to show that Myers’s conduct was based on her gender, the court need not and does
not reach these issues.
Aaron’s also has moved for summary judgment on Moat’s retaliation claim. It
argues that Moat cannot meet the second and third requirements under Burlington N.,
548 U.S. at 68-69, for a prima facie case of retaliation: that the employer subjected the
plaintiff to some action that would be materially adverse to a reasonable employee,
and that there was a causal connection between the adverse action and the protected
activity. (Doc. 32 at 32). Aaron’s also contends that, even if Moat could make a prima
facie case for retaliation, she has not given any proof that Aaron’s stated reasons for
the challenged actions were pretextual. (Doc. 32 at 36). For the reasons explained
below, Aaron’s motion is due to be GRANTED on this claim.
Moat Has Not Given Evidence To Show That Any Action
Could Qualify As Materially Adverse
According to the Supreme Court, in order to support a claim of retaliation, an
action must have been “materially adverse,” which is defined as an action that “might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N., 548 U.S. at 68. Aaron’s argues that, as a matter of law,
none of the actions alleged by Moat would be materially adverse. Viewed in the light
most favorable to the plaintiff, the following actions took place after Moat filed her
For some time, sales manager Linda Morgan was hostile toward Moat
and avoided communicating with her except by giving to-do lists.
Moat was told by Morgan to do a disproportionate amount of the
cleaning tasks (compared to other employees) for the store. She was
often asked to clean the women’s bathroom and mop the floors during
regular business hours. Moat also was ordered to help carry heavy
furniture out of the warehouse into the store. All of these tasks were
included in her job description, but she was asked to do them more often
than other employees.
On two or three occasions, Morgan credited a sale to herself when Moat
had actually deserved the credit. At other times, she attempted to “steal
customers” by promising discounts to customers whom Moat was
On an unspecified number of occasions, the store managers (the only
employees who could fill out the paperwork to close a sale) would delay
assisting her in finishing her sales.
The first category of allegedly adverse action — Morgan’s hostility and
avoidance of communication — has consistently been held not to qualify as materially
adverse pursuant to the Supreme Court’s statement in Burlington N., 548 U.S. at 68,
that the “decision to report discriminatory behavior cannot immunize that employee
from those petty slights or minor annoyances that often take place at work.” See, e.g.,
Johnson v. Weld Cnty., 594 F.3d 1202, 1216 (10th Cir. 2010) (holding that giving the
“cold shoulder” and avoiding the plaintiff are not sufficient to support retaliation
claim); Recio v. Creighton Univ., 521 F.3d 934, 940–41 (8th Cir. 2008) (holding
“silent treatment” was nonactionable “petty slight” and not materially adverse for
retaliation claim); King v. Louisiana, 294 F. App’x 77, 85 (5th Cir. 2008) (holding
that allegations of rudeness and unfriendliness by supervisor and co-worker,
“unpleasant work meetings, verbal reprimands, improper work requests and unfair
treatment do not constitute adverse employment actions as . . . retaliation”).
As to the second category — Morgan assigning Moat a disproportionate share
of cleaning duties and inventory transportation — it is significant that those tasks were
part of her job description. Aaron’s accurately summarizes the law in its Motion:
“being asked to perform ‘undesirable’ or ‘unnecessary’ work is not a materially
adverse action, particularly where, as here, the ‘undesirable’ or ‘unnecessary’ tasks
assigned are part of the employee’s job duties.” (Doc. 32 at 33). The Eleventh Circuit
has stated that “Title VII is not designed to make federal courts sit as a
super-personnel department that reexamines an entity's business decisions.” Davis v.
Town of Lake Park, Fla., 245 F.3d 1232, 1244 (11th Cir. 2001). Therefore, courts are
reluctant “to hold that changes in job duties amount to adverse employment action
when unaccompanied by any tangible harm.” Id. “A change in work assignments” will
only be actionable “in unusual instances” where it is “so substantial and material that
it does indeed alter the terms, conditions, or privileges of employment.” Id. at 1245.
This is not one of those “unusual instances.” No reasonable jury could conclude that
Moat’s being assigned more cleaning and inventory movement than other employees
would dissuade a reasonable employee from maintaining a charge of discrimination.
The third category of alleged adverse actions is sales that should have gone to
Moat, but were improperly credited to Morgan. At one point in her deposition, she
alleged that three sales were stolen (doc. 31-1 at 50), but she could only describe two
sales. The first, to Edward Hussey, took place in March or April of 2012. (Doc. 31-1
at 69). Since Moat did not file her first EEOC charge until a few months later, in June,
this incident cannot have been retaliation for that charge. The other sale, to Joan
Hamilton, occurred on July 6, 2012. Aaron’s has claimed “it is undisputed that [Moat]
subsequently received credit for the July sale after Morgan realized that she had
inadvertently credited herself with the sale.” (Doc. 38 at 11). In the portion of
Morgan’s deposition that Aaron’s cites, Morgan does say that she credited herself
accidentally, but she also says that she did not remember if this mistake was ever
corrected and if Moat received the commission for that sale. (Doc. 31-7 at 22). This
is the only evidence cited by Aaron’s, and the court has not been able to find any other
evidence as to whether Moat ever received payment for the sale to Hamilton.
Wrongful withholding of a sales commission has a financial impact on an employee,
and it is well-settled that a decision with a significant financial impact can be an
adverse employment action. See Davis, 245 F.3d at 1238; Alexander v. Casino Queen,
Inc., 739 F.3d 972, 980 (7th Cir. 2014). However, Moat has presented no evidence of
what commission or other benefit she would have received had the sale been credited
to her. It is the plaintiff’s burden to prove all elements of her claim, and, based upon
the lack of evidence presented, no reasonable factfinder could conclude that Moat
suffered a significant financial detriment.
Neither does any material question of fact remain as to the fourth alleged
category of adverse action, that managers at Aaron’s would delay helping Moat close
a sale. Moat said,“I can’t think of any [sales] that I was unable to close. Eventually –
after them making me wait a long time, they would eventually do it after making me
and the customer wait, and customer would get angry sometimes.” (Doc. 31-1 at 63).
Without any lost sale or damage to her job, a manager’s delay in giving help, even
though intentional and spiteful, is only one of the “petty slights” that the Supreme
Court has said fall short of being “materially adverse.” Burlington N., 548 U.S. at 68.
The Court Does Not Reach The Issues Of Causation And
Aaron’s also asserts that summary judgment is due on Moat’s retaliation claim
on the grounds of Moat’s failure to carry her burden of proof as to the two other
challenged elements: causation and pretext. Because summary judgment is due on the
basis of Moat’s failure to present evidence sufficient to show any materially adverse
actions against her, the court need not and does not reach these issues.
Aaron’s motion for summary judgment is due to be GRANTED as to Moat’s
hostile work environment claim. It is also due to be GRANTED on Moat’s retaliation
claim. The court will enter a separate final judgment order consistent with this
Additionally, Aaron’s motion to strike plaintiff’s deposition errata sheet (doc.
39) is GRANTED.14
FED. R. CIV. P. 30 governs errata sheets, and states,
(1) Review; Statement of Changes. On request by the deponent or a party before the deposition
is completed, the deponent must be allowed 30 days after being notified by the officer that the
transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the changes and
the reasons for making them.
(2) Changes Indicated in the Officer's Certificate. The officer must note in the certificate
prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes
the deponent makes during the 30-day period.
According to the rule, Moat was required to submit her deposition errata sheet to the
officer in charge of the deposition (in this case, Cindy C. Jenkins, ACCR #470) within 30 days
of being notified of the transcript’s availability. Jenkins would then have been required to attach
DONE and ORDERED this 12th day of November, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
the changes to the transcript. However, it does not appear that Moat followed the required
procedure. The errata sheet was purportedly signed by the plaintiff on April 14, 2014. (Doc. 35
at 3). This was the same day that Aaron’s filed its motion for summary judgment, and submitted
Moat’s deposition as evidence. (Doc. 31-1). The errata sheet was then filed with the court over a
month later, on May 15, 2014. There is no indication that it was ever presented to Jenkins, the
proper recipient of it. The party submitting the errata sheet (Moat) bears the burden of showing
that she complied with the Federal Rules of Evidence, and she has failed to do so. Therefore,
Aaron’s motion to strike is due to be GRANTED.
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