Simpson v. Big Lots Stores Inc
MEMORANDUM OPINION. Signed by Senior Judge Inge P Johnson on 7/8/2014. (KAM, )
2014 Jul-08 PM 12:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BIG LOTS STORES, INC.,
Pending before the court are defendant Big Lots Stores’ motion for
summary judgment (doc. 14), a brief in support of said motion as well as
evidentiary materials in support thereof (docs. 15–16), plaintiff’s response to said
motion (doc. 19), and defendant’s reply to plaintiff’s response (doc. 20). For the
reasons discussed below, the court finds that defendant’s motion for summary
judgment is due to be granted.
STATEMENT OF FACTS
Rhonda Simpson’s troubled interactions with her co-worker W.C.
Collingsworth harken back to days long before Collingsworth began allegedly
making inappropriate sexual comments to Simpson and her female co-workers.
Collingsworth approached Simpson at a Florence McDonald’s because he was
struck by Simpson’s Farrah Fawcett likeness and her husband’s University of
Kentucky sweatshirt. Simpson Depo. pp. 14–15, 22. Collingsworth remarked on
Simpson’s good looks and opined that Simpson must be a good cook like all
southern women. Collingsworth suggested that Simpson come see him at Big Lots
should she ever need a job, and Simpson eventually interviewed with
Collingsworth for a cashier position at the store. Id. at 16, 23–24. On her
application for employment with Big Lots, which plaintiff filed in 2002, Simpson
listed Collingsworth as a friend or relative working at Big Lots. Id. at 17. Big Lots
hired Simpson as a cashier. Id. at 24.
After interviewing with Collingsworth and Gary Pagan, Simpson was
promoted to the position of associate manager in October of 2003. Simpson Depo.
pp. 38–39. Gary Pagan and Collingsworth were also managers at the time. Id. at
41. Simpson reported to Pagan. Id. Although Simpson stated that she excelled at
her job at Big Lots, she also claimed that due to Collingsworth’s behavior, she
would sneak around the office in order to avoid contact with him. Id. at 45–46.
However, Simpson also admitted in her deposition that she avoided contact with
Collingsworth because he would talk for hours at a time. Id. at 46. Simpson further
claims that at some point, Collingsworth attempted to kiss her and “he would have
kissed [her] on the lips if [she] hadn’t turned [her] cheek for him to kiss [her] on
[her] cheek.” Id. at 47–48. Simpson also claims that Collingsworth engaged in “the
touching of arms, hands, shoulders, you know . . .” and “[h]ugging all the time.”
Id. at 48. Simpson further testified in her deposition that Collingsworth made
comments about customers’ “boobs” and “butt[s]” as well as “said ass and tits and
that kind of stuff.” Id. at 50. Additionally, Simpson claims that Collingsworth told
her that her “tits are looking good today” ten to fifteen times over the ten years she
worked at Big Lots. Id. at 50, 52. However, Simpson admitted that after Big Lots
started requiring uniformed polo shirts for managers in 2011-2012,
Collingsworth’s comments about her breasts practically ceased. Id. at 51. Simpson
also reported Collingsworth’s behavior to Gary Pagan beginning in May of 2003.
Id. at 54–55.
In her deposition testimony, Simpson further claimed to have reported an
instance in which Collingsworth told “perverted stories” “about his hard-on and
screwing some lady in a car.” Id. at 55. Simpson also alleges that at some point
Collingsworth told a story about being in a car close to a cliff and as he and a
woman were having sex “somebody hit the shift button and if they hadn’t have
caught it, they would have went over the cliff.” Id. at 178. Collingsworth also
allegedly made “gestures to his crotch and [said] that he would have to lift it up or
make little statements about how big it was and how he had to move it around . . .
.” Id. at 179. Simpson claims that at some point Collingsworth also said to
“[n]ever trust a woman whose tits are bigger than her head,” when he saw
customers with large breasts. Id. at 181. Additionally, Simpson claims that
Collingsworth saw an employee on her knees and remarked that he liked his
women that way. Id. at 192. Simpson further alleges that Collingsworth told her a
story about being in a bus stop with a young woman and having to wait to exit the
bus stop because “he had got a hard on.” Id. at 193. Collingsworth also allegedly
talked “about being in Vietnam having sex with a Vietnamese and she [said] to
him, no more fucky; you fuck too much.” Id. at 194. Simpson further alleges that
Collingsworth told a story about having to throw down a blanket and have sex
because he could not wait any longer and that a cop knocked on the car door
because the windows were steamed up. Id. at 195–96. Collingsworth also
allegedly remarked on how large black women’s butts are, paging Simpson to the
front of the store to show off such women. Id. at 202. Simpson further alleges that
Collingsworth made several dirty jokes using the words “fucking,” “p-word,”
“whore” and “slut.” Id. at 203–05. According to Simpson, Collingsworth made
such inappropriate comments only to women. Id. at 197.
Simpson, however, also admitted in her deposition that each time she
reported an incident to Pagan, he would arrange a meeting and he would say he
discussed the matter with Collingsworth. Id. at 57. Following Pagan’s actions,
Simpson claimed that Collingsworth’s behavior “did slow down for a couple of
weeks at a time each time he did talk to W.C. about the situation.” Id.
In 2006, Simpson also contacted Big Lots’ employee hotline concerning
Collingsworth’s alleged sexual harassment. Id. at 60–61. Simpson admitted in her
deposition, however, that her impetus for calling the hotline was complaints she
received from other employees concerning Collingsworth’s sexual harassment. Id.
at 68. In response to Simpson’s call, Bruno Lajoie came to investigate the
allegations. Id. at 61. However, Simpson claims that she never met with Bruno
because she made the call anonymously and she was not working the hours that
Bruno conducted the interviews. Id. at 61, 63–64. Although Simpson knew that
Lajoie was conducting an investigation of her anonymous complaint, she made no
effort to contact Lajoie to participate in the investigation. Id. at 72. Simpson made
no other complaints on the hotline other than the 2006 complaint. Id. at 70.
Following the investigation, Simpson heard that Collingsworth had been written
up for the harassment and his behavior stopped for a while thereafter. Id. at 75.
Simpson claims that she made another complaint to Pagan concerning
Collingsworth’s behavior to which he responded that he always discussed
Simpson’s complaints with Collingsworth. Id. at 94–95. When Pagan asked
Simpson if she wanted him to fire Collingsworth, Simpson told Pagan she did not
“want anyone to lose their job no matter who you are,” but that she wanted the
issue resolved. Id. at 95. On this occasion, Simpson claims that she informed
Pagan that Collingsworth “had made it clear that he was not circumcised” and that
“he would tell [them] how he would get a hard on over everything.” Id. at 95–96.
Simpson claims that although Pagan called other employees to come in to be
interviewed concerning these allegations, Pagan did not call Simpson. Id. at
98–99. Simpson, however, also acknowledged that she was out on medical leave
at the time Pagan called other employees to come into interview. Id. Simpson
claims she found out about the interviews because another employee, Gina Fulton,
told her that Anthony Thomas, the district manager, was conducting interviews. Id.
at 99–101. Simpson further stated that Fulton asked her what to do with a
notebook she had detailing Collingsworth’s alleged misconduct and that Simpson
told Fulton, “under no circumstances do you give them the notebook.” Id. at 100.
Instead, Simpson contacted her attorney on behalf of the two employees. Id.
Simpson also acknowledged that she never contacted anyone in Big Lots’
management to tell them her allegations about Collingsworth. Id. at 105. Simpson
filed her EEOC charge in late August of 2012. Id. at 85.
During her employment at Big Lots, Simpson also sustained an injury while
removing furniture from a truck. As she was moving furniture, the freight
collapsed on top of her and she was pinned between the rail and th furniture. Id. at
79. As a result of her injury, Simpson went on leave sometime between April 13th
and April 17th of 2012 and claims she tried to work intermittently throughout the
following year. Id. at 83–85.1 Simpson claims that she returned to work for a
couple of weeks sometime in May, but took leave in June. Id. at 123. Simpson
acknowledged in her deposition that she witnessed no inappropriate behavior from
Collingsworth from the time she took leave in May until she filed her EEOC
complaint in August. Id. at 164. When Simpson was unable to return to work in
August, Big Lots extended her leave and benefits through September. Id. at 124.
Sometime in late September, Simpson returned to work as a cashier. Id. at 125–26.
In October 2012, Simpson again requested leave from Big Lots to have surgery
done on one of her feet. Id. at 131–32. Simpson further admitted in her deposition
that although Big Lots requested that she inform them of her status by February of
Simpson also claims that on the same day she sustained her injuries in the truck, she
received complaints from two female employees that Collingsworth had been telling them
inappropriate stories. Simpson claims to have reported these complaints to Pagan as well.
However, inadmissible hearsay alone cannot suffice to defeat summary judgment. See Alvarez v.
Royal Atl. Developers, Inc., 610 F.3d 1253, 1268 n. 10 (11th Cir. 2010) (“Alvarez also testified
that other employees told her they heard similar discriminatory remarks, but she did not offer any
affidavits or deposition testimony from them. Her testimony about what she heard secondhand is
inadmissible hearsay, which cannot be used to defeat summary judgment.”) (citation omitted).
2013, her physician did not fax the requested documentation to Big Lots until
March 4, 2013, and Simpson took the doctor’s note into the office the following
day. Id. at 143–146. According to the affidavit of Rick Saenz, Regional Human
Resources Manager for the area including Simpson’s store, Big Lots terminated
Simpson because after failing to respond by February 13, 2013, Simpson “was
deemed to have resigned her employment as of February 13, 2013 and was
administratively terminated.” Saenz Aff. p. 6. Collingsworth submitted his
resignation in September 2012. Ex. 27 to Simpson Depo.
STANDARD OF REVIEW
A court may grant a movant’s motion for summary judgment “when the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820
(11th Cir. 2010); Hamilton v. Southland Christian School, Inc., 680 F.3d 1316,
1318 (11th Cir. 2012). An issue is “material” if it is a legal element of the claim
under the applicable substantive law which might affect the outcome of the case. It
is “genuine” if the record taken as a whole could lead a rational trier of fact to find
for the nonmoving party. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
In determining whether to grant the motion, the court must view “the
evidence and all reasonable inferences from that evidence. . . in the light most
favorable to the nonmovant.” Jean-Baptiste, 627 F.3d at 820 (11th Cir. 2010);
Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). However, the court need
only draw those inferences “to the extent supportable by the record.” Penley v.
Eslinger, 605 F.3d 843, 848 (11th Cir. 2010). Once met by the moving party, the
burden shifts to the non-moving party to come forward with evidence to establish
each element essential to that party’s case sufficient to sustain a jury verdict. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Earley v. Champion Int’l
Corp., 907 F.2d 1077, 1080 (11th Cir. 1990).
Title VII Sexual Harassment2
A plaintiff may rely on two theories to make out a sexual harassment claim:
(1) that she suffered a tangible employment action or (2) that she was subjected to
a hostile work environment. Baldwin v. Blue Cross/Blue Shield of Alabama, 480
F.3d 1287, 1300 (11th Circuit 2007). Additionally, “[w]hen a plaintiff proves that
Plaintiff maintains three separate counts for “Title VII (Sexual Harassment)”, “Title VII
Hostile Work Environment)” and “Title VII (Termination).” Response p. 9 (doc. 19). Because
Title VII sexual harassment claims may be established by showing that the plaintiff suffered a
hostile work environment or a tangible employment action, i.e. termination, the court addresses
all three of plaintiff’s hostile work environment and “termination” claims under the heading of
Title VII sexual harassment.
a tangible employment action resulted from a refusal to submit to a supervisor’s
sexual demands, he or she establishes that the employment decision itself
constitutes a change in the terms and conditions of employment that is actionable
under Title VII.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753-54
(1998). However, “[f]or any sexual harassment preceding the employment
decision to be actionable . . . the conduct must be severe or pervasive.” Id. at 754.
Tangible Employment Action
Plaintiff suffered a tangible employment action in her termination, but has
failed to establish that the tangible employment action she suffered was a result of
the sexual harassment. “To be sure, termination is the ultimate change in the terms
and conditions of employment because it ends them. But termination will support
a claim only if it was caused by discrimination. See Ellerth, 524 U.S. at 760, 118
S. Ct. at 2268 (noting that an employer is liable if its ‘discriminatory act results in
a tangible employment action’ (emphasis added)).” Baldwin v. Blue Cross Blue
Shield of Ala., 480 F.3d 1287, 1300 (11th Cir. 2007). Although Simpson claims
her supervisor decided to retaliate against her as a result of her extended leave, see
Pl. Depo. pp. 150-152, plaintiff does not dispute that she did not return Big Lots’
requested documentation by February 13, 2013. Additionally, Rick Saenz swore
by affidavit that plaintiff’s failure to submit documentation concerning her
extended leave of absence was the reason for her termination. Accordingly,
Simpson’s tangible employment action claim fails because she cannot establish
that her termination was the result of the alleged discrimination she suffered. Thus,
summary judgment is due to be granted in favor of Big Lots against plaintiff’s
tangible employment action claim.
Hostile Work Environment
Prima Facie Case
A person seeking to make out a sexual harassment hostile work
environment claim must demonstrate the following:
(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
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999). Moreover, the
Plaintiff must show that the alleged conduct was both subjectively and objectively
The employee must “subjectively perceive” the harassment as
sufficiently severe and pervasive to alter the terms or conditions of
employment, and this subjective perception must be objectively
reasonable. The environment must be one that a reasonable person
would find hostile or abusive and that the victim subjectively perceives
to be abusive. Furthermore, the objective severity of harassment should
be judged from the perspective of a reasonable person in the plaintiff’s
position, considering all the circumstances.
Mendoza, 195 F.3d at 1246 (citations omitted). Although Simpson alleges that
Colingsworth touched her arms, shoulders, and hands, this behavior is neither
objectively severe or pervasive. No reasonable person would find such behavior
hostile or abusive, and Simpson does not allege that Collingsworth touched her
arms or shoulders on so many occasions as to constitute pervasive behavior.
Moreover, Collingsworth’s attempt to kiss Simpson is neither objectively severe
or pervasive, given that Simpson alleges this occurred only once. However, a
genuine issue of material fact exists as to whether Collingsworth’s endless storytelling, references to women’s breasts and butts, and comments about sex and his
penis constituted objectively hostile or abusive behavior, especially if such
comments were directed only at women in the office as plaintiff alleges. For
instance in Reeves v. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010), the
Eleventh Circuit determined that
[e]vidence that co-workers aimed their insults at a protected group may
give rise to the inference of an intent to discriminate on the basis of sex,
even when those insults are not directed at the individual employee. A
jury could infer the requisite intent to discriminate when that employee
complained to her employer about the humiliating and degrading nature
of the commentary about women as a group and the conduct persisted
Id. at 811. In that case, the Eleventh Circuit determined that “[t]he terms ‘whore,’
‘bitch,’ and ‘cunt,’ the vulgar discussions of women’s breasts, nipples, and
buttocks, and the pornographic image of a woman in the office were each targeted
at Reeves’s gender.” Id. at 811–12. Viewing the evidence in a light most favorable
to Simpson, Collingsworth’s behavior could certainly give rise to an inference of
an intent to discriminate on the basis of sex. According to Simpson’s deposition
testimony, Collingsworth constantly made remarks about his female co-workers’
breasts, the breasts and buttocks of female customers, the size of his penis, and his
sexual exploits. Moreover, by Simpson’s account, Collingsworth told these stories
only to female employees. Thus, Simpson has established that at least a genuine
issue of material fact exists as to whether a hostile work environment persisted at
Big Lots’ Faragher-Ellerth Defense
Despite Collingsworth’s reprehensible and repulsive behavior, plaintiff’s
hostile work environment claim cannot overcome Big Lots’ Faragher-Ellerth
defense. In fact, plaintiff makes absolutely no mention of Big Lots’ invocation of
the Faragher-Ellerth defense in her response. “The Faragher-Ellerth defense is
not available where the discrimination the employee has suffered included a
tangible employment action. See Ellerth, 524 U.S. at 762–63, 765, 118 S.Ct. at
2269, 2270; see also Faragher, 524 U.S. at 808, 118 S.Ct. at 2293.” Yet, the court
has already determined that Simpson has failed to establish that her termination
was the result of her sexual discrimination. Thus, “[t]he only arguable basis for
recovery that she has is hostile environment discrimination, and the FaragherEllerth defense is available to an employer defending against that type of Title VII
claim.” Baldwin, 480 F.3d at 1303.
An employer avoids liability under this defense if: (1) it “exercised
reasonable care to prevent and correct promptly any sexually harassing
behavior’; and (2) the employee “unreasonably failed to take advantage
of any preventive or corrective opportunities [it] provided.” Faragher,
524 U.S. at 807, 118 S.Ct. at 2293; Ellerth, 524 U.S. at 765, 118 S.Ct.
at 2270. Because it is an affirmative defense, the employer bears the
burden of establishing both of these elements. See Frederick v.
Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir.2001).
As the Eleventh Circuit has noted, “there is nothing in the Faragher or Ellerth
decisions requiring a company to conduct a full-blown, due process, trial-type
proceeding in response to complaints of sexual harassment.” Baldwin, 480 F.3d at
1304. Plaintiff conceded in her deposition that every time she made a complaint to
Pagan, he arranged a meeting with her and informed her that he had spoken with
Collingsworth. Additionally, the record includes three documents detailing
disciplinary counseling given W.C. Collingsworth. See Ex. B to Defendants’ Motion
for Summary Judgment pp. 12-13, 18 (doc. 16-4). Moreover, Big Lots conducted at
least two investigations into the allegations against Collingsworth, in which plaintiff
made no effort to participate. In fact, plaintiff admittedly attempted to hinder Big
Lots’ investigation by instructing Wilson not to turn over her documentation of
Collingsworth’s misbehavior. Big Lots has made a showing that it exercised
reasonable care to prevent and correct promptly any sexually harassing behavior and
that Simpson unreasonably failed to take advantage of any preventive or corrective
opportunities it provided. In sum, Big Lots conducted a reasonable investigation in
response to Simpson’s allegations, and that investigation is enough to satisfy Big
Lots’ responsibility under Title VII. Thus, summary judgment is due to be granted in
favor of Big Lots against Simpson’s hostile work environment claim.
Title VII Retaliation Claim
Under University of Texas Southwest Medical Center v. Nassar, 133 S. Ct.
2517, 2533 (2013), “Title VII retaliation claims must be proved according to
traditional principles of but-for causation, not the lessened causation test stated in
§ 2000e-2(m). This requires proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or action of the employer.”
Id. In other words, a plaintiff making a Title VII retaliation claim “must establish
that his or her protected activity was a but-for cause of the alleged adverse action
by the employer.” Id. at 2534. But see Ramirez v. Bausch & Lomb, Inc., No.
12-14679, _F. App’x_, slip op. at 7 n.2 (11th Cir. 2013) (“However, the Court did
not clarify the role of ‘but for’ causation in a plaintiff's prima facie case.”). Thus,
the plaintiff always has the burden of persuasion “to proffer evidence sufficient to
permit a reasonable fact finder to conclude that discriminatory animus was the
'but-for' cause of the adverse employment action.” Sims v. MVM, Inc., 704 F.3d
1327, 1332 (11th Cir. 2013) (reconciling “but-for” causation and the McDonnell
Douglas framework in ADEA case, and affirming summary judgment where
appellant could not establish that discriminatory animus was the but-for cause of
his termination). No evidence suggests that the but-for cause of Simpson’s
termination was her filing any sexual harassment complaints. Rather, Simpson’s
deposition testimony and Saenz’s affidavit establish that Simpson was terminated
after failing to respond to Big Lots’ request for documentation following her
extended leave. While plaintiff contends that her demotion to cashier after
returning from leave constituted retaliation, plaintiff admitted in her deposition
that she looked up and understood that Big Lots’ policy prohibited them from
holding her position open for longer than ninety days. Pl. Depo. p. 127. Moreover,
the only retaliatory animus Simpson points to is Gary Pagan’s desire to make her
“pay” for having utilized worker’s compensation. Accordingly, because Simpson
cannot establish that her having made any sexual harassment complaints was the
but-for cause of her termination, her Title VII retaliation claim is due to be
Based upon a consideration of the foregoing, the court finds that
defendant’s motion for summary judgment (doc. 14) is due to be GRANTED. The
court shall grant said motion by separate Order.
DONE and ORDERED this 8th day of July 2014.
INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE
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