Godsey v. Huntsville, City of, Alabama et al
MEMORANDUM OPINION. Signed by Senior Judge Inge P Johnson on 11/25/2014. (PSM)
2014 Nov-25 PM 12:09
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CITY OF HUNTSVILLE, ALABAMA,
Pending before the court are defendant City of Huntsville, Alabama’s (“COH”)
motion for summary judgment (doc. 22), defendant Robert Burks’ motion for
summary judgment (doc. 23), the defendants’ brief in support of motions for summary
judgment (doc. 24) and evidentiary material (docs. 25-1 through 25-57), the plaintiff’s
response (doc. 30) and affidavit (doc. 30-1), the defendants’ reply (doc. 31) and
motion to strike the plaintiff’s affidavit (doc. 32), and the plaintiff’s response to the
motion to strike (doc. 36). Plaintiff Sherry Godsey, an employee of COH since June
4, 2009, asserts several claims based on incidences of alleged sexual harassment by
COH employee Burks, that took place from around July 2009 to June 2012 (doc. 1 pp.
3-6).1 She asserts claims against COH for unlawful discrimination (Count One) and
Godsey filed an employment discrimination charge with the Equal Employment
Opportunity Commission on November 26, 2012 (doc. 1-1). The U.S. Department of Justice
issued a Notice of Right to Sue Within 90 Days on July 23, 2013 (doc. 1-2). Godsey filed a
retaliation (Count Two) under Title VII of the Civil Rights Act of 1964, and negligent
or wanton hiring, training, supervision, and retention (Count Seven). Id. pp. 6-8,
10-12. Against Burks she asserts claims for violation of 42 U.S.C. § 1983 (Count
Three), assault and battery (Count Four), invasion of privacy (Count Five), and
outrage (Count Six). Id. pp. 8-11.
STATEMENT OF THE FACTS2
I. COH’s Chain-of-Command and Sexual Harassment Policies
During the relevant period, Godsey worked as a custodial janitor for the
General Services Department of COH, which was headed by Jeff Easter (doc. 25-4 pp.
9-11). Easter directly supervised several people, including Clifton McGinness. Id.
p. 10. McGinness supervised Amy Woodall, who was later replaced by Willie Lynch.
Id. pp. 15-16. Woodall, then Lynch, supervised Burks. Id. p. 15. In his position as
a “custodial shift supervisor,” Burks oversaw the cleaning and supplying of certain
buildings and assigned daily cleaning tasks to those under his supervision. See id. pp.
11-12; doc. 25-2 pp. 29-30, 40; doc. 25-3 p. 194; doc. 25-34 p. 10. Depending on
which buildings Godsey was assigned to clean, Burks or another person, including
complaint in this court on October 18, 2013 (doc. 1). She also served COH with a notice of
claim, pursuant to the requirements of Alabama law (doc. 1-3).
The statement of the facts is based on the evidence on record construed in the light
most favorable to Godsey. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th
Cassandra Ballard, supervised her work (doc. 25-4 pp. 11-12). The General Services
Department had a chain-of-command policy, which generally required employees to
bring concerns, questions, or problems first to their direct supervisors. Id. p. 16.
While Burks did not have authority to reassign workers to different buildings,
he could make a recommendation to do so to his supervisor, who would sometimes
take the recommendation (doc. 25-2 pp. 41-43). Burks also had the authority to make
an entry in a “conversation log” documenting any problem he had with his
subordinates (doc. 25-4 p. 57). When a conversation log was written, it was given to
the next person up the chain of command and could work its way up to Easter. Id. pp.
57-63. In a log, Burks could ask his supervisor to take disciplinary action against a
subordinate (doc. 25-2 p. 44). Burks also could bring his concerns to his supervisor
verbally, which could work its way up to Easter (doc. 25-4 pp. 58-59). Easter had the
ultimate authority to make disciplinary decisions, but he considered recommendations
from supervisors in the chain below him. Id. pp. 54-55. When there was an issue with
an employee’s performance, he could issue a Notice of Departmental Hearing to
address the issue. See id. p. 53.
During the relevant time period and currently, when COH hires a new
employee, a Human Resources employee goes over COH’s sexual harassment policy
with the employee, and the new employee signs a paper indicating that he or she was
briefed on the policy (doc. 25-5 pp. 36-37). Employees are advised that they do not
have to stay within the chain-of-command policy of their department if they have a
harassment complaint (doc. 25-3 pp. 38-39). Under the policy, an employee may take
a complaint to their immediate supervisor or go directly to the Equal Employment
Officer, Saundra Simmons, or the Director of Human Resources, Byron Thomas (doc.
25-36 p. 10; doc. 25-39 p. 13; doc. 25-3 pp. 12-13; doc. 25-5 p. 33). When an
employee complains of harassment to a supervisor, the policy directs the supervisor
to “immediately contact the Human Resources Director” (doc. 25-36 p. 10; doc. 25-39
The policy states that COH “does not tolerate harassment of employees and
others based on, or related to, sex. . . . This policy applies to the actions of Department
Heads, Division Managers, supervisors, [and] co-workers. . . . Department Heads,
Division Managers, supervisors, and employees who violate this policy are subject to
severe discipline, including termination of employment” (doc. 25-36 p. 9; doc. 25-39
p. 11). The policy also prevents retaliation on the basis of reported harassment and
specifically defines the forms sexual harassment might take, including “unwelcome
sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual
nature” (doc. 25-36 p. 9; doc. 25-39 pp. 11-12). It discusses that harassment occurs
when submission to such conduct is made a condition of employment, a demand that
can be explicit or implied (doc. 25-36 p. 9; doc. 25-39 p. 12). It states that “[n]o
supervisor shall threaten or insinuate . . . that an employee’s refusal to submit to
sexual advances will adversely affect the employee’s employment, evaluation,
classification . . ., assigned duties, or any other condition of employment or career
development” (doc. 25-36 p. 9; doc. 25-39 p. 12).
Upon Burks’ and Godsey’s employment with COH in June 2006 and June
2009, respectively, they received copies of the sexual harassment policy (doc. 25-1
pp. 37-39; doc. 25-33 p. 13; doc. 25-35 p. 23). They also signed documents indicating
that the harassment policy had been explained to them (doc. 25-1 pp. 40-41; doc.
25-33 p. 14; doc. 25-35 p. 24). At the time of the alleged harassment, Godsey was
aware of the sexual harassment policy and that she had an obligation to report sexual
harassment as a COH employee (doc. 25-1 pp. 68, 135).
II. The Sexual Contact Between Burks and Godsey
On June 4, 2009, Godsey began cleaning buildings for COH (doc. 25-33 p. 12).
She was assigned to clean certain buildings, some of which were assigned to Burks
to oversee (see doc. 25-2 pp. 29-30). A few weeks after she began work, she informed
Burks that she had been unable to turn off the lights in the Aquatics Building after she
had cleaned it (doc. 25-1 pp. 131-33). They went to the building, which was closed
to the public at the time, and when they arrived, Burks braced Godsey against a wall
and kissed her. Id. pp. 132-33, 138. She did not tell him to stop, express that the kiss
was unwelcome, or resist. Id. p. 134.
The next incident took place in 2010 while Godsey cleaned the Scruggs Center,
which was closed to the public at the time. Id. pp. 137-38, 142. Burks asked her to
show him where she had cleaned the bathroom. Id. p. 139. When they entered the
bathroom, he undid her belt, took her pants down, and kissed her. Id. pp. 139-40. The
two had sex in the bathroom. Id. p. 140. She returned his kiss and did not tell him to
stop or try to push him away. Id. pp. 142-43. He did not say anything to her during
the incident and did not threaten her or her job. Id. pp. 151, 219, 222.
Three weeks later in the bathroom of the Scruggs Center, which was closed to
the public at the time, he again asked her to show him what she had cleaned. Id. pp.
182-85. When she told him that she did not want to go, he told her to “go back there.”
Id. p. 185. He pulled her by her arm into the bathroom and took off her pants. Id. pp.
185, 190. She struggled to get away, but he put her arms around his neck and held
her. Id. p. 193. When he kissed her, she did not kiss him back. Id. They had sex.
Id. p. 192. Because she was afraid someone would come in and catch them, she said,
“we got to go,” “we got to quit . . . get our clothes on,” and “no, I don’t want to do it.”
Id. pp. 186, 200-01. After she said this, Burks stopped, pulled his clothes up, and left
the bathroom. Id. p. 201. During this incident, he did not threaten her or her job. Id.
pp. 219, 222.
The two had sexual contact a third time in the Scruggs Center after he told her
to go into the bathroom to show him what she had cleaned. Id. p. 216. She told him
she did not want to go into the bathroom, but went with him after he said loudly, “In
there. In there.” Id. pp. 216-17. He did not say anything else or threaten her or her
job. Id. pp. 218-19, 221-22. While they were having sex, she told him to stop
because she was afraid that someone would come into the bathroom. Id. p. 223. He
said “okay,” stopped, and left the bathroom. Id.
In early 2010, after the incidents at the Scruggs Center, he kissed her in the
bathroom of another building that COH was contracted to clean. Id. pp. 168-70. She
did not pull away, tell him “no,” or indicate that the kiss was unwanted. Id. p. 170.
She told him that they needed to get out of the building before they got caught by
other people. Id. pp. 171-72.
Also after the incidents at the Scruggs Center, Godsey and Burks met twice at
motel rooms. Id. p. 230. The first time, he asked her to get a room with him. Id. p.
244. She drove to the motel after her shift and met him prior to his shift beginning.
Id. pp. 240-41. He went into the lobby to pay for the room while she stayed in her car.
Id. p. 243. They entered the motel room and he took a shower while she watched
television. Id. pp. 248-49. When he got out of the shower, he took her clothes off and
they had sex. Id. p. 249. She did not tell him that she did not want to do it or to stop.
Id. pp. 243-44, 250. He did not threaten her physically before or during the first motel
visit. Id. p. 246.
On the second occasion, Godsey went to the motel alone and paid for the room
in the afternoon. Id. pp. 252-53. She got off work at 12:00 a.m. the following day and
waited at a McDonalds for Burks to get off work an hour later. Id. pp. 234-35. She
then drove to the motel to meet him and they had sex. Id. pp. 233, 257. The only
reservation she had about having sex with him on this occasion was that she did not
want to spend money on the room. Id. pp. 388-89. Prior to going to one of the
motels, he told her that if she did not meet him at the motel he would “write [her] up.”
Id. p. 239.
The next incident occurred in the fall of 2010 in the upstairs women’s bathroom
of the Richard Showers Center, a building that was closed to the public at the time.
Id. pp. 145-49. Burks removed Godsey’s pants, kissed her, fondled her, and had sex
with her. Id. pp. 148-49. She did not say “no,” ask him to stop, or tell him that the
contact was unwelcome. Id. p. 150. She returned his kisses. Id. Neither of them said
anything during the encounter. Id. pp. 150-51.
About a month later, after the Richard Showers Center had been closed to the
public for the day, while showing Godsey what to clean, Burks took her to a closet
containing exercise mats. Id. pp. 269-70, 272. He told her, “get in there,” but did not
threaten her. Id. pp. 272-73. She said, “No. I don’t want to go in there.” Id. p. 273.
He again said, “Get in there.” Id. They had sex in the closet. Id. p. 270. While in the
closet, she pushed him and said, “Stop. We got to get out of here. We’ve got to get
out.” Id. pp. 275-76. He stopped and got up. Id. p. 276. She did not tell him that she
did not want to have sex with him. Id.3
The next sexual contact took place in the men’s bathroom at the Natatorium in
early 2011 while the building was closed to the public. Id. pp. 154, 156, 161. Burks
told Godsey to show him where she had cleaned the bathroom, and she said that she
did not want to show him. Id. p. 155. He signaled for her to go into the bathroom and
they both went in. Id. After they entered the room, he undid her belt, put her arms
around him, and kissed her. Id. p. 158. She returned his kiss. Id. pp. 159-60. He
took her hands and made her do things she did not want to do and they had sex. Id.
p. 158. She pulled her hands away and told him to stop because she was afraid that
someone would come in the door. Id. pp. 158-59. He stopped. Id. p. 159. She did
not otherwise tell him to stop or indicate that the contact was unwanted. Id. p. 160.
They had sex two other times at the Natatorium; however, the details of those
encounters are not in the record. See id. pp. 286-87. On one of these occasions, he
Apparently, there was another incident at the Richard Showers Center in the closet, the
details of which are not in the record (see doc. 25-1 p. 269).
threatened to write her up if she did not go into the bathroom with him. Id. pp.
The next incident took place in the men’s bathroom at the Jaycee Center where
Godsey was cleaning. Id. pp. 300-02. Burks went into the bathroom and called for
her to come in. Id. p. 302. She said, “What?” Id. p. 303. He grabbed her, took her
pants off, and would not let her leave the bathroom. He did not threaten her or say
anything other than, “get in here.” She told him that she did not want to have sex and
he did it anyway. Id.
On a later date at the Jaycee Center, while she was cleaning for another
company, Unique Cleaning, he went into one of the bathrooms and said, “In here. In
here.” Id. pp. 309-10, 314. She went in and he undid her belt and they had sex. Id.
pp. 314-15. He did not threaten her. Id. p. 315. She told him that they were going to
get caught by the Unique Cleaning people. Id. pp. 316-17. He was afraid of getting
caught, so he hurried up, put his clothes on, and left. Id. p. 317. He told her not to tell
the Unique Cleaning people about the incident. Id. She did not report the incident to
her supervisor at Unique Cleaning. Id. pp. 310-11.
The next sexual contact occurred at the Westside Gym where she was cleaning.
Id. pp. 317-18. She told him that she did not want to have sex with him. Id. p. 323.
He said that if she did not go into the women’s shower room with him and have sex,
he would “turn them people loose” on her, meaning he would open the doors to the
building to allow people in who ordinarily sat in the parking lot of nearby apartments.
Id. pp. 321-23. They had sex in the shower room. Id.
Approximately three months later in early 2012, he asked her to clean the
Lakewood Center. Id. pp. 342-45. She did not want to clean the building. Id. p. 345.
She drove to the building, however, and after showing her what to clean, Burks locked
her in the building. Id. pp. 345-46. He left in a van. Id. p. 346. Shortly after she
finished cleaning, he returned and asked to see what she had cleaned. Id. pp. 347,
350. They went into a shower room, where he removed her pants. Id. pp. 351-52.
When she said she did not want to have sex, he told her to be quiet, but did not
threaten her. Id. pp. 355, 358. They had sex. Id. p. 351. During sex, she told him
that they should stop. Id. pp. 354-55.
The next incident took place when Burks asked Godsey to go to the Max Luther
Gym to clean. Id. pp. 57, 359-60. When she said she did not want to go, he said he
would write her up. Id. pp. 57, 360-61. When she arrived at the gym, he was there
with another woman who was cleaning. Id. p. 361. He told Godsey what to clean.
Id. p. 372. After she finished and showed him what she had done, he used his cell
phone to call the other woman and asked her to come back and have a threesome with
them. Id. pp. 372-73. The woman declined and left the building. Id. p. 373. Then,
Godsey followed Burks to a supply room where he took off her pants and they had
sex. Id. p. 381. He did not threaten her. Id. p. 382. She told him that they should
stop because someone was going to catch them. Id. p. 386. He said it would not take
long, so they did not need to stop. Id.
The next sexual contact occurred in 2012 in the women’s bathroom of the Fleet
Building where Godsey was cleaning. Id. pp. 389, 393.4 On one of the occasions,
Burks asked her to perform oral sex. Id. pp. 453-54. When she said she did not want
to, he told her to do it anyway and that he would perform oral sex on her. Id. p. 455.
He did not threaten her. Id. p. 454. When he performed oral sex on her, she told him
to stop because her back was hurting. Id. pp. 456-57. He stopped and they got up,
dressed, and left. Id. p. 457.
The final incident took place at the Fleet Building. Id. p. 399. Three to four
weeks prior, Godsey had reported to Lynch that she needed supplies to clean with
because Burks had not provided her with supplies. Id. pp. 399, 405, 411. Burks
showed up that day at the building very angry, pointed his finger in her face, and said
“one more time.” Id. p. 405. He threw his radio on the floor. Id. p. 406. She was
frightened and told him she would call the police unless he left the building. Id. He
picked up his radio and left. Id. p. 410.
Godsey testified that three or four incidents occurred in the Fleet Building (doc. 25-1 p.
390). However, she described two and could not remember any others. Id. pp. 457-58.
Three or four weeks later, Burks came back to the Fleet Building to deliver
supplies to Godsey. Id. pp. 411-12. He said, “in there,” indicating the bathroom. Id.
pp. 412-13. He wanted her to show him what she had cleaned. Id. p. 419. She said
she did not want to go into the bathroom, but did not say that she did not want to have
sex. Id. p. 425. When they went into the bathroom, he kissed her and put her hands
around his neck. Id. p. 419. He undid her belt and took his pants down, and they
began having sex. Id. p. 420. He stopped and said, “hang on for just a minute,” he
had to get something. She began putting her clothes on and he said, “No. Leave your
clothes off. I’ll be right back. . . . Stay in there.” She said, “All right.” Id.
A few minutes later he came back, told her to bend over, and placed the handle
of a plunger in her vagina. Id. pp. 420-21. She felt behind her and asked, “What have
you got?” Id. p. 421. When he told her, she said, “Get it out.” Id. pp. 418, 421. He
removed the plunger and took it back where it came from. Id. p. 421. She put her
clothes on and left the bathroom. Id. He did not try to stop her and did not threaten
her during the incident. Id. pp. 423, 430.
III. 2012 Notice of Departmental Hearing
On June 4 and 5, 2012, Burks wrote conversation logs on Godsey, stating that
she had spoken to him using profane language and, after he attempted to discuss issues
with her clocking in and out at lunch, had threatened to “go over [his] head” and
report that he had tried to engage her in a threesome (doc. 25-2 pp. 45-47; doc. 25-24
pp. 522-24). McGinness, with Easter’s approval, issued a Departmental Hearing
Notice to Godsey, indicating that a hearing would be held on July 2, 2012, to address
five potential violations of COH personnel policies and procedures (doc. 25-4 pp.
64-65; doc. 25-33 pp. 17-18). The hearing was to address allegations that she had
unprofessionally, and that on June 5, 2012, she had communicated with Burks in an
undesirable and inappropriate manner (doc. 25-33 p. 17). It had also been reported
that she was not clocking in and out correctly and that she had been resistive and
insubordinate with her supervisors on a number of occasions. Id. p. 18.
In June of 2012, Burks took a letter to Godsey notifying her of the departmental
hearing (doc. 25-2 p. 69). She refused to take the letter. Id. p. 70. Lynch explained
to Godsey what the letter said, and she refused to go to the hearing (doc. 25-1 pp.
49-51). The hearing never took place (doc. 25-4 p. 64).
IV. Godsey’s Reports of Sexual Harassment
In 2010 or 2011, Godsey allerted her immediate supervisor, Ballard, and
Ballard’s supervisor, Woodall, that a week or two before, a man named Otis, who
worked for A-1 Cleaning, had sexually harassed her at the Richard Showers Center
(doc. 25-1 pp. 26, 28, 31-34). She reported Otis because he had notified her
supervisor that she was bothering him at work. Id. pp. 31-32. She did not report the
sexual contact with Burks at that time. Id. pp. 211-12. While she had an opportunity
to report Burks’ harassment to Woodall or Ballard under her understanding of the
chain-of-command policy, she did not think that they would believe her. Id. pp. 214,
296-97. Woodall contacted A-1 Cleaning about the allegations against Otis and told
them that he was no longer to be assigned to COH buildings (doc. 25-3 p. 230).
From 2009 to July 2, 2012, Godsey never reported to anyone at COH that she
was being sexually harassed by Burks (doc. 25-1 p. 69). She failed to report before
then because she was afraid that she would lose her job. Id. Despite having received
COH’s sexual harassment policy that said she did not have to report sexual harassment
directly to her supervisor, Burks led her to believe that she had to report everything
to him and could not go above his head. Id. pp. 206-07. She knew that he did not
have authority to fire her, but believed that he could tell someone to fire her and they
would probably do it (doc. 25-1 pp. 76-77).
She finally reported on July 2, 2012, because she no longer cared about losing
her job and she had recently told her husband about her sexual contact with Burks, and
he told her how to report it. Id. pp. 69-70. That day, which was at least three weeks
after the final incident, she turned in her uniform to McGinness and told him that she
was resigning. Id. pp. 304-05, 400. She resigned because she was upset that her
supervisors did not bring her supplies and wrote people up, and that she was the last
to know things going on with the job. Id. pp. 470-71. She did not tell McGinness
about her sexual contact with Burks. Id. p. 306.
Later that day, she went to the Human Resources Department and spoke with
Equal Opportunity Officer Simmons. Id. pp. 339-40; doc. 25-3 p. 89. Simmons met
with her for two to three hours, and Godsey filed a sexual harassment complaint
against Burks (doc. 25-3 pp. 89-90; doc. 25-10 p. 3). That day, after speaking with
Godsey, Simmons met with Director of General Services Easter, Director of Human
Resources Thomas, and a person from the COH Legal Department to discuss how to
proceed (doc. 25-3 p. 204). They decided that the Human Resources Department
would not process Godsey’s resignation, and Simmons called Godsey and asked her
if she wanted to come back to work. Id. p. 205. Godsey returned to work that
afternoon. Id. When Burks came to work that day, Lynch, McGinness, and Easter
met with him, placed him on administrative leave, and took his keys to the buildings.
Id. pp. 204-05; doc. 25-2 pp. 75-76.
Simmons then conducted an extensive investigation into the allegations (see
docs. 25-11 through 25-30). Based on the information gathered, she made a number
of findings (doc. 25-3 p. 213). She first discussed her findings with Godsey, then
Burks, then she sent them to Easter. Id. pp. 213-14. She found that Godsey was
generally credible regarding the sexual contact that she reported took place, and
determined that the conduct was grossly inappropriate, demeaning, and, in the
instance of the plunger, potentially physically harmful. Id. p. 223; doc. 25-11 p. 8.
Simmons could not determine whether the sexual contact was consensual based
on three areas of Godsey’s allegations that she found were “questionable” (doc. 25-3
p. 224). First, Simmons found it concerning that twice Godsey had met Burks at a
motel and, on one occasion, had waited at McDonalds for him to get off work. Id.
Second, Godsey gave him a ride home after the sexual contact had begun and reported
having no problem doing it. Id.; see doc. 25-1 pp. 495-98. Third, Simmons was
concerned with the fact that Godsey filed the complaint shortly after being served with
a Notice of Departmental Hearing that was to take place on the day she filed the
complaint (doc. 25-3 pp. 224-25). Simmons noted that Godsey had acted similarly
when reporting Otis, where she reported harassment only after Otis complained to her
supervisor about her. Id. p. 225. Simmons found that Godsey engaged in a pattern
of reporting conduct as inappropriate after she thought that the alleged perpetrator had
made a complaint against her. Id. However, Simmons concluded that there was no
reason to believe that Godsey had consented to Burks’ use of a plunger. Id. p. 255.
Simmons recommended to Easter that Burks be removed from supervising
Godsey permanently and that steps be taken to minimize their contact (doc. 25-11 p.
2). When Easter received Simmons’ findings, he decided to take Burks off of
administrative leave and to separate Godsey and Burks so that they would not interact
during work (doc. 25-4 pp. 72-73). Burks returned to work on October 1, 2012, and
was no longer Godsey’s supervisor. Id. p. 73; doc. 25-2 pp. 76, 78-79. Easter told
him not to contact Godsey (doc. 25-2 p. 78). Godsey reported to Lynch or another
individual if Lynch was not available (doc. 25-4 p. 73). Burks and Godsey received
sexual harassment training in October 2012, after the investigation, but had no training
prior to that (doc. 25-3 pp. 24, 30, 215). Since July 2, 2012, Burks has not spoken to
Godsey (doc. 25-1 pp. 452-53; doc. 25-2 p. 76).
V. Godsey’s Hours Temporarily Reduced
Godsey has always worked for COH on a part-time basis (doc. 25-1 pp. 97-98).
When she began, she worked 25 hours per week. Id. In the fall of 2012, renovations
began on one of the buildings she was assigned to clean, which would have potentially
reduced her hours to 20 per week (doc. 25-4 pp. 74-76; see doc. 25-55 p. 3). She was
offered a chance to work 24 hours per week by working on the weekends and she took
the offer (doc. 25-4 p. 76; see doc. 25-55 p. 3). She is still employed with COH and
is now working 25 hours per week (doc. 25-1 p. 99; doc. 25-3 p. 83; doc. 25-55 p. 6).
Her pay rate has never decreased, but has actually increased (doc. 25-1 pp. 482-83).
VI. The Effects of the Harassment
As a result of the alleged harassment, in 2011, Godsey began having less sex
with her husband, as she lost her desire to do so. Id. pp. 498-99, 501-02. From 2009
until the present, she has been unable to sleep as well as she once could, a problem
which progressively has worsened over the years. Id. pp. 502-03. Her lack of sleep
has “a little bit to do” with the harassment, but it is not because she is “worried” about
the lawsuit. Id. pp. 503-04; doc. 30-1 p. 2.
STANDARD OF REVIEW
An order of summary judgment is appropriate where there is no genuine issue
of material fact and the movant is entitled to judgment as a matter of law. Frederick
v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001). The evidence and,
to the extent supportable by the record, all reasonable inferences taken from it are
viewed in the light most favorable to the nonmovant. Id.
I. Sexual Harassment/Discrimination Claim
Title VII prohibits employers from discriminating against any individual with
respect to her compensation, terms, conditions, or privileges of employment on the
basis of such individual’s sex. 42 U.S.C. § 2000e-2(a)(1). To establish a Title VII
claim based on sexual harassment, a plaintiff must prove “(1) that she belongs to a
protected group; (2) that she has been subjected to unwelcome sexual harassment;
(3) that the harassment was based on her sex; (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 a basis for holding the
employer liable exists.” Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d
1227, 1231 (11th Cir. 2006). Claims by a plaintiff seeking to hold an employer liable
for the actions of a supervisor can be separated into two groups: (1) those in which
the harassment results in a “tangible employment action”; and (2) those in which the
harassment does not result in a tangible employment action, but constructively alters
the employee’s working conditions. Frederick, 246 F.3d at 1311.
The parties here do not contest that Godsey belongs to a protected group or that
the alleged harassment was based on her sex. COH asserts, inter alia, that there is no
legal basis for which to hold it liable for Burks’ actions because he is not a
“supervisor” for the purposes of Title VII and Godsey cannot show that COH was
negligent in controlling working conditions (doc. 24 pp. 18-20). COH further asserts
that even if Burks was Godsey’s supervisor, it cannot be held liable because: (1) no
tangible employment action was taken against Godsey (id. pp. 26-28); and (2) it
exercised reasonable care to prevent and correct the behavior, and Godsey failed to
take advantage of the preventive or corrective opportunities. Id. pp. 24-26.
The test for determining an employer’s liability under Title VII depends on the
status of the harasser as a supervisor or merely a co-worker. Vance v. Ball State Univ.,
133 S.Ct. 2434, 2439 (2013). If the harasser is a co-worker of the victim, then the
employer is liable only if it was negligent in controlling working condition s. Id. If
the harasser is the victim’s supervisor and a tangible employment action is taken, then
the employer is strictly liable. Id. If no tangible employment action is taken, the
employer may assert an affirmative defense showing that (1) it exercised reasonable
care to prevent and correct the harassment, and (2) the plaintiff unreasonably failed
to take advantage of the preventive or corrective opportunities provided. Id.
Because the court concludes that COH is entitled to an affirmative defense even
if Burks was Godsey’s supervisor, for the purposes of this opinion, the court assumes
that Burks was her supervisor under Title VII. First, Burks’ alleged harassment did
not result in a tangible employment action. A tangible employment action is one
involving “a significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Id. at 2442 (quotation and citation omitted).
In most cases, it inflicts direct economic harm and can include a reduction in an
employee’s hours resulting in a reduction in her take-home pay. Cotton, 434 F.3d at
1231. A causal connection must exist between the employment action and the
Godsey asserts that because Burks was her supervisor, she received a tangible
job benefit for succumbing to the harassment (doc. 30 p. 21). Yet, there is no
evidence that she was promoted, given desirable assignments, allowed to keep her job,
or otherwise benefitted based on her compliance or non-compliance with Burks’
sexual advances. Further, her reliance on allegations that Burks withheld supplies
from her after she protested to having sex with him is not “a decision causing a
significant change in benefits.” See Vance, 133 S.Ct. at 2434. Godsey also implies
that Burks initiated a disciplinary hearing based on “vague and stale allegations of
misconduct” (doc. 30 p. 21). Yet, there is no evidence that the Notice of Departmental
Hearing was caused by the harassment, and the hearing never took place (doc. 25-4
p. 64). See Cotton, 434 F.3d at 1231. While her working hours were reduced from
25 to 24 per week in October 2012, she does not assert and has not established a
causal connection between the reduction and the alleged harassment (doc. 30 p. 21).
See Cotton, 434 F.3d at 1231.
Because the harassment did not cause a tangible employment action, COH may
avoid liability by establishing that it exercised reasonable care to prevent and correct
Burks’ behavior, and that Godsey failed to take advantage of the preventive or
corrective opportunities. See Vance, 133 S.Ct. at 2439. COH acted with reasonable
care to prevent and correct Burks’ behavior. It had a sexual harassment policy, which
defined and prohibited the precise conduct alleged here (doc. 25-36 p. 9; doc. 25-39
pp. 11-13). The policy was disseminated to COH employees upon their employment,
including Godsey and Burks (doc. 25-5 pp. 36-37; doc. 25-33 pp. 13-14; doc. 25-35
pp. 23-24). Employees were informed that they did not have to stay within the chain
of command to report harassment and could go to the Director of Human Resources
or the Equal Employment Officer (doc. 25-36 p. 10; doc. 25-39 p. 13). At the time of
the alleged harassment, Godsey knew that there was a sexual harassment policy and
was aware that she had a responsibility to report any harassment (doc. 25-1 pp. 68,
COH also acted with reasonable care to correct Burks’ behavior after Godsey
reported it. Immediately after she filed the sexual harassment complaint, Burks was
placed on administrative leave and his keys to the buildings were taken from him (doc.
25-3 pp. 204-05; doc. 25-2 pp. 75-76). Simmons conducted an extensive investigation
into the allegations (see docs. 25-11 through 25-30). When the investigation was
complete, Simmons reported her findings and recommendations to Godsey, Burks,
and Easter (doc. 25-3 p. 213). She could not determine whether the sexual contact
was consensual and recommended that Burks permanently be removed from
supervising Godsey and steps be taken to minimize their contact. Id. p. 224; doc.
25-11 p. 2. When Burks returned to work on October 1, 2012, he was no longer
Godsey’s supervisor, and arrangements were made for Godsey to report directly to
Lynch or another person if Lynch was not available (doc. 25-4 p. 73). That month,
Burks and Godsey received sexual harassment training (doc. 25-3 pp. 24, 30). Since
July 2, 2012, when Godsey filed the harassment complaint with Simmons, Burks has
not harassed Godsey or spoken to her (doc. 25-1 pp. 452-53; doc. 25-2 p. 76).
Godsey failed to take advantage of the preventative opportunities made
available to her by COH. While she was aware of and received a copy of the sexual
harassment policy and understood her obligation to report harassment, she failed to
report for approximately three years (doc. 25-1 pp. 68-69, 135; doc. 25-33 pp. 13-14).
While she believed that she had to go through the chain of command to report
harassment, the policy clearly stated that reports could be made to the Director of
Human Resources or the Equal Employment Officer (doc. 25-1 pp. 206-07; doc. 25-36
p. 10; doc. 25-39 p. 13). Even based on her understanding of the chain-of-command
policy, she knew that she could report the alleged harassment to another supervisor
and simply did not do so, even when she reported another incident of sexual
harassment by a different man (doc. 25-1 pp. 211-12, 214, 296-97).
Therefore, even assuming that Burks was Godsey’s supervisor under Title VII,
COH cannot be held liable for the alleged sexual harassment.
employment action was taken against Godsey, and COH has established that it
exercised reasonable care to prevent and correct Burks’ behavior and that Godsey
failed to take advantage of the preventive or corrective opportunities. See Vance, 133
S.Ct. at 2439. Accordingly, COH’s motion for summary judgment is due to be
GRANTED as to the sexual harassment/discrimination claim (Count One).
II. Retaliation Claim
To establish a prima facie claim for retaliation under Title VII, Godsey must
show that: (1) she engaged in statutorily protected expression, (2) she suffered an
adverse employment action, and (3) there was a causal relation between the two
events. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). If she
establishes a prima facie case, COH may articulate a legitimate, non-retaliatory reason
for the challenged employment action. Id. If COH does so, Godsey must prove by
a preponderance of the evidence that the reason is pretext for prohibited, retaliatory
COH argues, inter alia, that Godsey has not established a prima facie claim for
retaliation because she did not suffer an adverse employment action (doc. 24 pp.
25-26). To satisfy this element of her claim, Godsey “must show that a reasonable
employee would have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from making or
supporting the charge of [harassment].” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006). Godsey does not respond to COH’s motion for summary
judgment as to the retaliation claim and has therefore abandoned the claim (doc. 30
p. 22). See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599-600 (11th Cir.
1995) (declining to address arguments not fairly presented in the district court).
Therefore, summary judgment is due to be GRANTED in favor of COH as to the
retaliation claim (Count Two).
III. Negligent or Wanton Hiring, Training, Supervision, and Retention
COH first argues that Godsey is prohibited under Alabama law to sue the
municipality for the wanton conduct of its employees and agents (doc. 24 p. 28). See
Hilliard v. City of Huntsville, 585 So.2d 889, 892 (Ala. 1991) (holding that, pursuant
to Ala. Code § 11-47-190, a municipality may not be held liable for wantonness).
Godsey, offering nothing in response to COH’s argument, has abandoned this claim.
See Resolution Trust Corp., 43 F.3d at 599-600. Therefore, COH’s motion for
summary judgment is due to be GRANTED as to Godsey’s claims for wanton hiring,
training, supervision, and retention (Count Seven).
Second, COH argues that Godsey’s negligence claims are not cognizable under
Alabama law and that, even if Godsey’s claims are cognizable, she has not established
that it was negligent (doc. 24 pp. 29-30). While Ex parte City of Montgomery, 99
So.3d 282, 299 (Ala. 2012), suggests the existence of a cause of action for negligent
hiring, training, supervision, and retention against a municipality under Alabama law,
COH is nevertheless entitled to summary judgment on these claims. See Howard v.
City of Demopolis, Ala., 984 F.Supp.2d 1245, 1260 (S.D. Ala. 2013). To hold COH
liable, Godsey must put forth affirmative proof that COH and the employee for whose
actions she seeks to hold COH liable knew, or should have known through exercise
of proper care, of Burks’ alleged incompetence. Id. Because she offers no evidence
or argument in response to COH’s motion for summary judgment and has abandoned
these claims, the motion is due to be GRANTED as to the negligent hiring, training,
supervision, and retention claims (Count Seven) (doc. 30 p. 22). See also Resolution
Trust Corp., 43 F.3d at 599-600.
IV. Section 1983 Claim
Section 1983 provides that every person who, under color of state law, deprives
any citizen of any rights, privileges, or immunities secured by the Constitution and
laws of the United States shall be liable to the party injured. 42 U.S.C. § 1983; Griffin
v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Burks asserts that
Godsey cannot establish that he acted under color of state law (doc. 24 pp. 31-33). “A
person acts under color of state law when he acts with authority possessed by virtue
of his employment with the state.” Griffin, 261 F.3d at 1303. Thus, the court must
determine whether the defendant acted pursuant to power he possessed by state
authority or as a private individual. Id. A defendant acts under color of state law
when he abuses the position given to him by the State. Id.
Based on the totality of the circumstances and construing the evidence in a light
most favorable to Godsey, a reasonable jury could conclude that the alleged
harassment occurred while Burks was acting under color of state law. See id. at 1303,
1305. Many of the incidents took place in buildings that were closed to the public at
the time, and Burks’ access to the buildings and Godsey was by virtue of his
employment with COH (see doc. 25-1 pp. 135, 141-42, 149, 161, 184, 272). On two
occasions, he threatened to “write [Godsey] up” as her supervisor if she did not have
sex with him. Id. pp. 239, 288-89. On another occasion, he threatened to open the
doors to the building she was cleaning to people outside and “turn them people loose”
on her if she did not have sex with him. Id. pp. 321-23. Further, he would get her to
go into the rooms where the sexual contact took place by instructing her to show him
what she had cleaned, which was part of his duties as a custodial shift supervisor for
COH. Id. pp. 155, 185, 216, 425-26; doc. 25-3 p. 194.
Thus, there is a sufficient nexus between Burks’ duties and obligations as a
COH custodial shift supervisor and his abuse of authority as such in facilitating the
alleged harassment to survive summary judgment on this claim. See Griffin, 261 F.3d
at 1305. Burks’ motion for summary judgment is due to be DENIED as to Godsey’s
§ 1983 claim (Count Three).
V. Assault and Battery and Invasion of Privacy Claims
Assault is “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 well-founded fear of an imminent battery, coupled with the
apparent present ability to effectuate the attempt, if not prevented.” O’Rear v. B.H.,
69 So.3d 106, 117 (Ala. 2011) (quotation and citation omitted). To support a claim
of battery, “a plaintiff must establish: (1) that the defendant touched the plaintiff;
(2) that the defendant intended to touch the plaintiff; and (3) that the touching was
conducted in a harmful or offensive manner.” Ex parte Atmore Cmty. Hosp., 719
So.2d 1190, 1193 (Ala. 1998). To establish a claim of invasion of privacy based on
sexual harassment, “a plaintiff must show: (1) that the 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.” Id.
Burks asserts the defense of consent to Godsey’s assault and battery and
invasion of privacy claims (doc. 24 pp. 33-34). During much of the sexual contact,
Godsey did not resist Burks’ advances, tell him to stop, or express that the contact was
unwelcome (see e.g., doc. 25-1 pp. 134, 142-43, 150). However, on several occasions
she told him that she did not want to go with him into rooms where sexual contact had
already taken place, and upon directing her to go in with him, he engaged her in sex.
Id. pp. 155, 185, 216, 273, 425. On one of these occasions, he grabbed her by the arm
and pulled her into the bathroom. Id. p. 190. On three occasions, she told him that
she did not want to engage in sexual contact with him before it occurred. Id. pp. 303,
355, 455. On two occasions, he threatened to “write [her] up” if she did not have sex
with him. Id. pp. 239, 288-89. On another occasion, he threatened to “turn them
people loose” on her if she did not have sex with him. Id. pp. 321-23. Finally, based
on her investigation, Simmons concluded that there was no reason to believe that
Godsey consented to Burks’ use of a plunger (doc. 25-3 p. 255).
Thus, there remains a genuine issue of material fact as to whether Godsey
consented to the sexual contact with Burks. Thus, Burks’ motion for summary
judgment is due to be DENIED as to the assault and battery (Count Four) and invasion
of privacy claims (Count Five).
VI. Outrage Claim
To establish a prima facie case of outrage, Godsey must show that Burks’
conduct “(1) was intentional or reckless; (2) was extreme and outrageous; and
(3) caused emotional distress so severe that no reasonable person could be expected
to endure it.” O’Rear, 69 So.3d at 118 (quotation and citation omitted). Burks
contends that Godsey did not suffer severe emotional distress and that his conduct was
not extreme and outrageous (doc. 24 pp. 34-35).
Proof of egregious sexual
harassment, such as has been presented in this case, constitutes extreme and
outrageous conduct. See O’Rear, 69 So.3d at 118. Godsey’s testimony regarding the
repeated sexual contact, particularly that involving use of a toilet plunger, is sufficient
to create a jury question as to whether Burks’ conduct was extreme and outrageous.
In regard to the distress suffered by Godsey as a result of Burks’ actions, there
is evidence that she is less sexually attracted to her husband and that she does not
sleep as well as she once did (doc. 25-1 pp. 500-04). The later is only caused in part
by Burks’ actions. Id. p. 503. This is not such severe emotional distress that no
reasonable person could be expected to endure it. See O’Rear, 69 So.3d at 118. As
Godsey cannot establish an essential element to support a claim for outrage (Count
Six), Burks’ motion for summary judgment is due to be GRANTED as to this claim.
VII. Motion to Strike
The motion to strike (doc. 32) is due to be DENIED, as Godsey’s affidavit (doc.
30-1) purports to be based on her personal knowledge and does not contain hearsay.
See Fed.R.Evid. 801(d)(2)(D).
Therefore, the court shall by separate order enter these findings and
Defendant COH’s motion for summary judgment is due to be
GRANTED, and all claims (Counts One, Two, and Seven)
against COH are DISMISSED WITH PREJUDICE;
Defendant Burks’ motion for summary judgment is due to be
GRANTED, IN PART, as to Godsey’s claim for outrage, and the
outrage claim (Count Six) is DISMISSED WITH PREJUDICE;
Defendant Burks’ motion for summary judgment is due to be
DENIED, IN PART, as to Godsey’s § 1983 (Count Three),
assault and battery (Count Four), and invasion of privacy claims
(Count Five), which SHALL PROCEED against Burks.
The defendants’ motion to strike Godsey’s affidavit is due to be
DONE and ORDERED this the 25th day of November, 2014.
INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE
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