Pipes v. Falkville Alabama, City of, The
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 3/31/2016. (KEK)
2016 Mar-31 AM 09:03
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THE CITY OF FALKVILLE,
Case No.: 2:12-cv-02885-MHH
On September 30, 2015, Magistrate Judge Staci Cornelius entered a report
and recommendation concerning defendant City of Falkville, Alabama’s motion
for summary judgment. (Doc. 40). In her report, Judge Cornelius recommended
that the Court enter judgment as a matter of law in favor of the City on plaintiff
Jady Pipes’s Title VII retaliation claim, and she recommended that the Court deny
the City’s motion for summary judgment on Mr. Pipes’s Title VII sexual
harassment claim. (Doc. 40, p. 27). The City filed objections to the report and
recommendation. (Doc. 41). Mr. Pipes filed a response to the City’s objections.
(Doc. 43). Because the parties did not consent to dispositive jurisdiction by a
magistrate judge, the Clerk reassigned this action to the undersigned to review
Judge Cornelius’s report and the City’s objections. (Doc. 42). For the reasons
stated below, the Court adopts Judge Cornelius’s recommendation concerning Mr.
Pipes’s retaliation claim. The Court will grant judgment as a matter of law in favor
of the City on Mr. Pipes’s sexual harassment claim as well.
STANDARD OR REVIEW
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
When a party objects to a report and recommendation, the district court must
“make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. The
Court reviews for plain error factual findings to which no objection is made.
Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see also United States
v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam), cert. denied, 464 U.S.
1050 (1984) (“The failure to object to the magistrate’s findings of fact prohibits an
attack on appeal of the factual findings adopted by the district court except on
grounds of plain error or manifest injustice.”) (internal citation omitted); Macort v.
Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir. 2006).
Title VII Retaliation
Judge Cornelius found that Mr. Pipes failed to demonstrate a genuine issue
of material fact concerning his claim for Title VII retaliation. (Doc. 40, pp. 16-27).
Neither party objected to this portion of Judge Cornelius’s report and
recommendation. The Court finds no clear error in the factual findings on which
the recommendation is based. Therefore, the Court will enter judgment in favor of
the City on Mr. Pipes’ retaliation claim.
Title VII Sexual Harassment
Judge Cornelius found that material questions of fact exist with respect to
Mr. Pipes’s Title VII sexual harassment claim. (Doc. 40, pp. 8-16). The City has
objected to this portion of Judge Cornelius’s report and recommendation. Based
on a de novo review of the record, the Court finds that the City is entitled to
judgment as a matter of law on Mr. Pipes’s sexual harassment claim because Mr.
Pipes, a former police officer and chaplain in the Falkville Police Department, has
not identified a disputed issue of material fact that demonstrates that the City
subjected him to discrimination because of his sex.
Title VII prohibits employers from discriminating against an employee
because of the employee’s sex. 42 U.S.C. § 2000e-2(a). “Sexual harassment is a
form of sex discrimination prohibited by Title VII.” Gupta v. Fla. Bd. of Regents,
212 F.3d 571, 582 (11th Cir. 2000), abrogated on other grounds by Burlington N.
& Sante Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
To establish a sexual
harassment claim based on a hostile work environment, a plaintiff must show:
(1) that he or she belongs to a protected group; (2) that the employee
has been subject to unwelcome sexual harassment, such as sexual
advances, requests for sexual favors, and other conduct of a sexual
nature; (3) that the harassment must have been based on the sex of the
employee; (4) that the harassment was sufficiently severe or pervasive
to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) a basis for
holding the employer liable.
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010)
(quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en
Importantly, to prevail on a sexual harassment claim, a plaintiff must “prove
that the conduct at issue was not merely tinged with offensive sexual connotations,
but actually constituted ‘discriminat[ion] . . . because of . . . sex.’” Oncale v.
Sundower Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (quoting 42 U.S.C. § 20022(a)(1)) (emphasis in Oncale). For conduct to run afoul of Title VII, the conduct
must “create a discriminatorily abusive working environment” and must place the
employee complaining of discrimination at a disadvantage as compared to
“‘members of the other sex,’” such that the evidence demonstrates “that the
harasser is motivated by general hostility to the presence of [the harassed sex] in
the workplace.” Reeves, 594 F.3d at 808 (emphasis added); Oncale, 523 U.S. at 80
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J.,
concurring)) (emphasis added). A court reviewing a Title VII sexual harassment
claim must be mindful of “the common-sense rule that the context of offending . . .
conduct is essential.” Reeves, 594 F.3d at 810.
In this case, the conduct at issue is “racking” – same-sex conduct in which
one man hits another man “[i]n the groin, in the rear end or whatever they can get
to.” (Doc. 30-1, pp. 29-30). It is undisputed that a successful strike is physically
painful, making it difficult to imagine any circumstance in which such vulgar,
offensive conduct could be appropriate in the workplace. (Doc. 27-2, p. 25 (94)).
It also is clear on the record in this case that Mr. Pipes found the unwelcome
conduct embarrassing and emotionally disturbing. Nevertheless, for his Title VII
claim to survive the City’s motion for summary judgment, Mr. Pipes had to
identify disputed evidence that would allow jurors to conclude that when his
harasser, the police chief, racked him, the police chief meant to put Mr. Pipes at a
disadvantage because the chief was motivated by a general hostility to the presence
of men in the police department. The Court finds no such evidence in the record.
The first racking incident occurred in late November 2011 on the Monday
after Alabama beat Auburn in the Iron Bowl. Mr. Pipes arrived for his shift, and
he heard Alabama’s fight song playing loudly in Chief Christopher Free’s office.
(Doc. 30-1, p. 28). Chief Free is an Alabama fan. Falkville’s mayor in 2011 was
an Auburn fan. Chief Free was “whooping and hollering about Alabama winning
the Iron Bowl” and told Mr. Pipes that he “was going to let the mayor have it.”
(Doc. 30-1, p. 30). During Chief Free’s celebration, he reached toward Mr. Pipes
and tried to grab him on the genitals. (Doc. 30-1, pp. 29-30). Mr. Pipes jumped
out of the way, and Chief Free’s hand touched Mr. Pipes’s left thigh. (Doc. 30-1,
pp. 29-30). Mr. Pipes told Chief Free, “Oh, no, Chief. I don’t play that. That’s
not going to get it with me.” (Doc. 30-1, p. 29). Chief Free responded, “Okay.
I’m still happy about my team winning the Iron Bowl.” (Doc. 30-1, p. 29). Chief
Free acknowledges the victory celebration but denies that he gestured toward Mr.
Pipes. (Doc. 27-1, p. 27 (101)).
The second incident occurred in early December 2011. Mr. Pipes, Chief
Free, and other members of the Falkville police and fire departments had gathered
for breakfast at the fire station, as they often did. (Doc. 27-2, p. 24; Doc. 30-1, p.
31). According to Mr. Pipes, as he went to the kitchen to get something to drink,
Chief Free “thumped [him] as hard as he could and hit [Mr. Pipes] in the crotch.”
(Doc. 30-1, p. 31). Chief Free made contact with the head of Mr. Pipes’s penis and
left testicle. (Doc. 30-1, p. 32). Mr. Pipes almost fell to the ground. As Mr. Pipes
raised his left leg, Chief Free “took his index finger and shoved it up into [Mr.
Pipes’s] rear end.” (Doc. 30-1, p. 31). Mr. Pipes had on pants, but Chief Free’s
finger went about an inch and a half into Mr. Pipes’s rectum. (Doc. 30-1, pp. 3233). Chief Free laughed, but he did not say anything when he stuck his finger into
Mr. Pipes’s rectum. (Doc. 30-1, p. 32). Mr. Pipes left the kitchen and told Chief
Free, “I cannot believe that you just did that me.” (Doc. 30-1, p. 33). Chief Free’s
version of the encounter is different: he testified that he “grabbed [Mr. Pipes] on
the back of his leg and yelled out to scare him, and that was the incident.” (Doc.
27-1, p. 24 (92)).
For purposes of summary judgment, accepting Mr. Pipes’s version of the
two incidents and assuming that Chief Free’s conduct had sexual connotation, Mr.
Pipes has presented no evidence upon which a reasonable jury could find that the
conduct constituted discrimination because of sex or that Chief Free was motivated
by hostility toward men in the workplace.1 Mr. Pipes argues that Chief Free’s
In a same-sex harassment case like this, a plaintiff may establish an inference of discriminatory
conduct by offering credible evidence that the alleged harasser is homosexual. Oncale, 523 U.S.
at 80-81. It is undisputed that Chief Free is not homosexual. (Doc. 27-2, p. 38; Doc. 30-1, p.
39). A plaintiff also may establish an inference of discriminatory conduct by offering direct
comparative evidence that the harasser treated men and women differently in the workplace.
Oncale, 523 U.S. at 80-81. The record reflects that Falkville once had a part-time female officer.
(Doc. 27-2, p. 19). It is unclear whether this female officer worked in the Falkville Police
Department while Mr. Pipes worked there. (Id.). Mr. Pipes has not offered evidence about the
number of female employees who worked for the police department, and he has not offered
comparative evidence that Chief Free treated male and female employees differently. (See Doc.
29, pp. 16-18; Doc. 40, p. 12; Doc. 43, p. 2). Even if Mr. Pipes had presented comparative
evidence, to maintain a claim under Title VII, he still would have to demonstrate that Chief Free
gave preferential treatment to female officers because he was motivated by discriminatory
actions “reinforce his superiority, power, and control over other males in his
environment.” (Doc. 29, p. 17). As support for this argument, Mr. Pipes cites a
portion of Chief Free’s deposition testimony in which Chief Free described racking
incidents that occurred on his high school and college football teams. (Doc. 27-2,
p. 25). Chief Free admitted that upperclassmen racked lower classmen as a form
of hazing, and he did not rack players who outranked him. (Doc. 27-2, p. 25). Mr.
Pipes also relies on Chief Free’s admission that since he (Chief Free) has been
employed with the City, he has racked other men, though he cannot remember a
particular individual or a particular occasion. (Doc. 27-2, p. 25). Even assuming
that this evidence demonstrates that Chief Free racked Mr. Pipes and other police
officers to assert his superiority over them, the conduct still lacks the element of
sexual discrimination indispensable to a Title VII claim.2
animus against male officers. Mr. Pipes’s failure to present evidence of discriminatory animus is
fatal to his Title VII claim. See infra pp. 8-10.
Significantly, hearsay evidence on which Mr. Pipes relies undermines his theory that Chief Free
engaged in racking to control subordinate officers. Mr. Pipes testified that Falkville City
Councilman Lance Stidham told him that Chief Free also thumped him in the testicles. (Doc. 301, p. 34). According to Mr. Pipes, Councilman Stidham said that Chief Free “does it all the time,
and guys at my work do it all the time, and they think it’s funny.” (Doc. 30-1, p. 34). Mr. Pipes
also testified that Assistant Fire Chief Mike Butler told Mr. Pipes that he (Chief Butler) “had
seen Chief Free do this to several of his firemen.” (Doc. 30-1, p. 37). Mr. Pipes’s testimony
about what Mr. Stidham and Chief Butler told him is hearsay if Mr. Pipes offers the testimony to
prove the truth of the matter asserted. A court may consider hearsay statements at the summary
judgment stage if the statements could be “reduced to admissible evidence at trial or reduced to
admissible form.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (internal
quotation marks and citation omitted). “If, however, the declarant has given sworn testimony
Moreover, Mr. Pipes’s theory that Chief Free used racking to exert his
power and control unravels when the incidents of racking involving Mr. Pipes are
viewed in context. The first took place while Chief Free was celebrating a victory
in a football rivalry. The second took place in a social setting while firemen and
police officers gathered for breakfast at the fire station. The context suggests
“male-on-male horseplay,” conduct that Title VII does not regulate. Oncale, 523
U.S. at 81. Neither Chief Free’s language nor his conduct in either instance
suggests that he was singling out Mr. Pipes because Mr. Pipes is male. See Linville
v. Sears, Roebuck & Co., 335 F.3d 822, 824 (8th Cir. 2003) (per curiam) (“While
Farnham’s striking Linville in the scrotum [three times] and laughing was
probative of crude, gender-specific vulgarity, it was not, by itself, probative of
during the course of discovery that contradicts the hearsay statement, [the Court] may not
consider the hearsay statement at the summary judgment stage.” Id. In a declaration,
Councilman Stidham states that he has “never seen Chief Free engage in conduct that [he]
considered as sexual harassment toward any individual, male or female, including Pipes.
Furthermore, Chief Free has never sexually harassed me or engaged in any behavior toward me
that I considered sexually inappropriate.” (Doc. 27-5, ¶ 13). Assistant Chief Butler states in a
declaration that he has “no recollection of ever seeing Chief Free thump, ‘rack,’ or otherwise
sexually harass any individual male or female, at any time or place. Furthermore, Chief Free has
never done that to me personally or in my presence.” (Doc. 34-1, ¶ 6). Because Councilman
Stidham and Assistant Chief Butler have provided sworn testimony that contradicts the hearsay
statements, the Court may not consider Mr. Pipes’s testimony on this point; the Court “cannot
assume that [Councilman Stidham and Assistant Chief Butler] will change [their] testimony at
trial and testify in conformity with the hearsay statement.” Jones, 683 F.3d at 1294. Even if the
Court could consider the hearsay statements, though, they would prove that Chief Free racks all
men who he encounters at work, even city councilmen. The statements would not demonstrate
generally that Chief Free acted with discriminatory animus based on sex or, more specifically,
that he racked subordinate police officers to establish his dominance over them.
gender discrimination.”); EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 519 (6th
Cir. 2001) (holding that a same-sex hostile work environment claim failed as a
matter of law where a co-worker twice grabbed the plaintiff’s genitals because the
plaintiff failed to demonstrate that he was discriminated against because of his sex
even though the conduct “was the classic example of men behaving badly”).
Judge Acker has framed the issue in cases such as this eloquently. To
paraphrase Judge Acker, the issue:
revolves around repeated churlish, childish, gross, sordid, vulgar, foul,
[and] disgusting [conduct] in the workplace. The question in the case,
however, is not how vile and obnoxious this workplace [conduct] was.
It was vile and obnoxious enough to score nine on a scale of ten3 . . .
The question for the court is rather whether this [conduct] morphed
from [vile and obnoxious horseplay] into a cause of action under Title
VII by an offended employee for same-sex sexual harassment.
EEOC v. McPherson Cos., Inc., 914 F. Supp. 2d 1234, 1235 (N.D. Ala. 2012).
The conduct at issue here did not. Mr. Pipes has every right to be offended and
disgusted by the conduct he has described, but “[t]he real social impact of
workplace behavior often depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully captured by a simple recitation
of the words used or the physical acts performed.” Oncale, 523 U.S. at 81-82.
However vulgar and offensive racking may be, on the record in this case and on
The conduct in this case musters a ten on a scale of ten.
the current state of the law in same-sex Title VII actions, “no reasonable jury could
believe that [the two racking incidents in this case] constitute discrimination
because of sex.” Davis v. Coastal Intern. Sec., Inc., 275 F.3d 1119, 1126 (D.C.
Cir. 2002). The Court must “distinguish between simple teasing or roughhousing
among members of the same sex” and conduct that speaks of discrimination on the
basis of sex. Oncale, 523 U.S. at 82; see also Harbert-Yeargin, Inc., 266 F.3d at
519 (“Since the conduct complained of in many of these sexual harassment cases
is so offensive, it is easy to understand that a sense of decency initially inclines one
to want to grant relief. It is easy to forget, however, that Title VII deals with
discrimination in the workplace, not morality or vulgarity.”).
There is no
admissible evidence of discriminatory motive in this case. Consequently, the
Court finds that the City’s motion for summary judgment on Mr. Pipes’s Title VII
sexual harassment claim is well-taken.4
Although Mr. Pipes has no Title VII claim, he may have other remedies, including possible
state law claims. See Davis, 275 F.3d at 1126 (“[W]hile Davis has no cause of action under Title
VII, we note that he may have remedies under local law (though they may not provide for
recovery of attorney’s fees, as does Title VII).”); Harbert-Yeargin, Inc., 266 F.3d at 522 (“I do
not mean in any way to make light of Mr. Carlton’s plight, but he had other remedies.
Everything from a union grievance to a criminal complaint and a civil action for assault and
battery. With a state civil action, the employer could still be a defendant and could have been
liable under these facts for the actions of its agents and employees, particularly when those
actions had been brought to the employer’s attention . . . . The issue is not ‘no wrong without a
remedy.’ The issue is how far Congress can go or, more accurately, has gone to regulate conduct
in the workplace.”).
For the reasons discussed above, the Court adopts in part Judge Cornelius’s
report and accepts in part her recommendation. By separate order, the Court will
enter judgment in favor in of the City on Mr. Pipe’s Title VII sexual harassment
and retaliation claims.
DONE and ORDERED this March 31, 2016.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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