Watson v. ARG Resources LLC

Filing 21

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 1/30/2017. (PSM)

FILED
2017 Jan-30 PM 02:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
CALANDRA WATSON,

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Plaintiff,
vs.
ARG RESOURCES LLC,
Defendant.

7:16-cv-00194-LSC

Memorandum of Opinion
Plaintiff Calandra Watson (“Watson”) brings this action against her former
employer, Arby’s Restaurant Group, Inc. (“ARG”), 1 alleging claims for hostile
work environment and retaliation under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et seq., as well as state-law claims for assault and
battery and invasion of privacy. Before this Court is ARG’s motion for summary
judgment. (Doc. 19.) For the reasons explained herein, ARG’s motion is due to be
granted.
I.

Factual Background
Watson began her employment with ARG on July 18, 2012, at ARG’s

Northport, Alabama, Arby’s location as a part-time team member. She sometimes
1

ARG is incorrectly identified in the complaint as “ARG Resources LLC.”
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worked the closing shift at the restaurant with a co-worker, Darrel Jernigan
(“Jernigan”), who was also the store’s assistant manager. Jernigan informed
Watson that the store’s general manager, Janice Jones (“Jones”), had instructed
him to ensure that all employees left the restaurant together at the end of the
closing shift, so that no employee would be in the restaurant alone. On three
separate occasions over a six-week period when Watson worked the closing shift
with Jernigan, he engaged in conduct that Watson interprets as sexual harassment.
On the first such occasion, Watson was working in the “back line” area
where the food is prepared in the restaurant when Jernigan passed behind her and
rubbed his pelvic area against her backside. As Watson turned around, Jernigan
made a “smart remark,” which Watson considered “harassing.” Watson
attempted to report Jernigan’s conduct to Jones, but Jones responded that Jernigan
“probably didn’t mean to do it.” Watson agreed that Jernigan’s conduct may have
been accidental because the “back line” area has limited space, and employees
sometimes bump into each other while working.
The second incident occurred several weeks later while Watson stood in the
kitchen in front of the sink, washing dishes to clean up for the night. Jernigan again
came behind Watson, and his pelvic area made contact with her backside. This
time, Watson said to Jernigan, “Look, you need to watch what you’re doing.”
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When Watson informed Jones that Jernigan had touched her a second time, Jones
giggled and said that Jernigan could not possibly have rubbed his pelvic area against
Watson “because his belly was so big.”
Finally, on the third occasion, Watson and Jernigan were walking by each
other, and Jernigan touched Watson’s breast with his elbow. Watson interpreted
Jernigan’s behavior as intentional because he did not say “excuse me” after
brushing against her. Upset at Jones’s response to her first complaints, Watson
went to a co-worker, Sharrese Burks (“Burks”), and the shift manager, Kelsey
Mennig (“Mennig”), in order to find out to whom she should report the touching.
Mennig suggested that Watson talk to Jones, to which Watson replied, “Ms. Janice
ain’t going to do nothing but laugh about it like it’s funny. She don’t take nobody
serious.”
At some point after these incidents, 2 Watson was involved in an unrelated
disagreement with another employee, which prompted her to contact the
restaurant’s area supervisor, David Emerson (“Emerson”). Emerson met with
Watson on April 9, 2015, and offered her the option to transfer to another Arby’s
location. At first, Watson declined the transfer and agreed to let the disagreement
2

When asked when the three incidents of “touching” occurred, Watson replied, “I don’t
know.” The timing of the six-week period is therefore unclear from the record, but it is
undisputed that the incidents occurred prior to late March 2015, the date of Watson’s
disagreement with a different co-worker.
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with the other employee pass. Watson then complained to Emerson that Jernigan
had engaged in “excessive touching” while the two worked together at the
restaurant. According to Watson, Emerson replied that “if he had to come back to
the store [] somebody was going to be gone.” This statement caused Watson to
reconsider the option to transfer, and she moved to the University of Alabama
Arby’s location on April 20, 2015.
Shortly after the transfer, on May 4, 2015, Watson submitted her charge of
discrimination to the Equal Employment Opportunity Commission (“EEOC”).
Sammie Clark (“Clark”), the general manager of the University of Alabama store,
scheduled Watson to work fewer hours than she had been working at the Northport
store. Clark also made a rude comment to other employees about Watson’s smell.
She made no complaint about this incident, however, and remained employed with
ARG until February 22, 2016, when she left because she found another, betterpaying job.
Watson received her right-to-sue letter from the EEOC on November 9,
2015. This suit was timely filed on February 2, 2016.
II.

Standard of Review

Watson, proceeding pro se, filed no response to ARG’s motion for summary
judgment. Nonetheless, this Court “consider[s] the merits of the motion” in order
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to determine whether summary judgment is appropriate. United States v. 5800 SW
74th Ave., 363 F.3d 1099, 1101–02 (11th Cir. 2004).
A motion for summary judgment is due to be granted upon a showing that
“no genuine dispute as to any material fact” remains to be decided in the action
and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In ruling on such a motion, this Court “view[s] the facts and draw[s] all reasonable
inferences in the light most favorable to the party opposing the . . . motion.” White
v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015) (quoting Scott
v. Harris, 550 U.S. 372, 378 (2007)). A genuine dispute as to any material fact
exists “if the nonmoving party has produced evidence such that a reasonable
factfinder could return a verdict in its favor.” Waddell v. Valley Forge Dental Assocs.,
276 F.3d 1275, 1279 (11th Cir. 2001).
III. Discussion
A. Hostile Work Environment
Watson first argues that the three incidents of “touching,” which she
considers sexual harassment, caused her to be subjected to a sexually hostile work
environment. In order to establish a prima facie case of hostile work environment,
Watson must show (1) that she belongs to a protected group; (2) that she has been
subjected to unwelcome sexual advances, requests for sexual favors, and other
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conduct of a sexual nature; (3) that the harassment was based on her sex; (4) that
the harassment was sufficiently severe or pervasive that it altered the terms and
conditions of her employment and created a discriminatorily abusive work
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). Only the final three
requirements are at issue here.
First, ARG contends that Watson fails to demonstrate that Jernigan’s
actions toward her were based on her sex because Watson admitted that she
believed one incident of touching was accidental and because Jernigan made no
comments, sexual or otherwise, to her at the time of the alleged contact. “To
establish that the harm alleged was ‘based on her sex,’ [Watson] ‘must show that
but for the fact of her sex, she would not have been the object of harassment.’”
Mendoza v. Borden, 195 F.3d 1238, 1248 n.5 (11th Cir. 1999) (en banc). When sexual
harassment has occurred, it is permissible to infer that “the harasser [is making]
advances towards the victim because the victim is a member of the gender the
harasser prefers.” Llampallas v. Mini-Circuits Lab, Inc., 163 F.3d 1236, 1246 (11th
Cir. 1998) (alteration in original). Watson testified that on two occasions—even if
the first was accidental—Jernigan rubbed his pelvic area against her backside, and
on a third occasion his elbow grazed her breast. ARG concedes for purposes of
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summary judgment that this contact is of a sexual nature, and it is therefore
appropriate to assume that Jernigan engaged in the conduct based on Watson’s sex.
ARG next argues that the conduct was not sufficiently severe or pervasive as
to alter the term and conditions of Watson’s employment. In order to prevail on
this prong, Watson “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.” Reeves, 594 F.3d at 809
(quoting Mendoza, 195 F.3d at 1246). Relevant factors in the analysis include the
frequency of the conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with the victim employee’s work performance. Id. at 808–09. Although Watson
may have subjectively perceived Jernigan’s behavior as “severe” or “pervasive,”
that belief was not objectively reasonable.
Watson complains of three particular incidents of “touching” that occurred
over a six-week period, one of which may have been accidental. None of the
incidents was accompanied by a sexually charged comment, and only the second
incident suggests conscious, intentional sexual harassment. The totality of the
circumstances here does not mandate the conclusion that Jernigan’s conduct, even
if harassing or offensive, crosses the established threshold of severity or
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pervasiveness to be actionable. First, three alleged incidents of harassment over a
six-week period hardly qualify as “pervasive” conduct. See id. at 804 (alleging that
harassment occurred “on a daily basis”); Dees v. Johnson Controls World Servs.,
Inc., 168 F.3d 417, 418 (11th Cir. 1999) (alleging “a continuous barrage of sexual
harassment” that occurred on an “almost-daily” basis); Stancombe v. New Process
Steel LP, 652 F. App’x 729, 735 (11th Cir. 2016) (finding “two incidents over a onemonth period” insufficiently frequent to constitute a hostile work environment).
Moreover, Jernigan’s behavior, though “boorish, rude, unwelcome, and
insensitive,” Guthrie v. Waffle House, Inc., 460 F. App’x 803, 808 (11th Cir. 2012),
is not severe under the applicable case law. See Hulsey v. Pride Restaurants, LLC,
367 F.3d 1238, 1248 (11th Cir. 2004) (finding that “many direct as well as indirect
propositions for sex,” “following [plaintiff] into the restroom,” “repeated
attempts to touch [plaintiff’s] breasts, place his hands down her pants, and pull off
her pants,” and “enlisting the assistance of others to hold her while he attempted
to grope her” qualified as objectively severe); Mendoza, 195 F.3d at 1247–48
(finding that “one occasion in which [the harasser] rubbed his hip against
[plaintiff’s] hip while touching her shoulder and smiling” and “two instances in
which [the harasser] made a sniffing sound while looking at [plaintiff’s] groin area
and one instance of sniffing without looking at her groin,” among other conduct,
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were neither “physically threatening or humiliating” nor severe). The fact that
Jernigan, as an assistant manager, was a higher-ranking employee at the restaurant
does not enhance the severity of the alleged sexual harassment because Jernigan,
unlike the harasser in Hulsey, had no authority to discipline or fire Watson, and
Watson does not allege that Jernigan used his status as the assistant manager as
“leverage” to intimidate her into not reporting the harassment. See 367 F.3d at
1248.
Additionally, Watson presents no evidence that Jernigan’s conduct
interfered with her work performance, as she continued to work for ARG for some
period after the “touching” occurred. See Guthrie, 460 F. App’x at 808 (finding
that alleged harassment did not prevent plaintiff “from performing her job duties”
because “[s]he maintained her employment [with defendant] throughout the entire
period of alleged harassment”). Emerson’s offer to permit Watson to transfer to a
different store related to Watson’s disagreement with a different employee, and
Watson requested the transfer only after Emerson commented that someone would
be “gone” if he had to return to the Northport location. Watson concedes that
Emerson may have been suggesting that Jernigan, not Watson, would be fired. A
claim for hostile work environment lies where “the workplace is permeated with
discriminatory intimidation, ridicule, and insult [that] create an abusive working
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environment” for the plaintiff. See Trask v. Sec’y, Dep’t of Veterans Affairs, 822
F.3d 1179, 1195 (11th Cir. 2016). Because Watson has failed to show such an
environment here, summary judgment on her hostile work environment claim is
due to be granted in favor of ARG.
B. Retaliation
Watson further claims that ARG unlawfully retaliated against her by
reducing her work hours for two weeks following her transfer to the University of
Alabama location and by forcing her to file for bankruptcy. She also considers
retaliatory Jones’s lack of response to her complaints about Jernigan’s behavior and
a comment that Clark allegedly made about her smell. Title VII prohibits an
employer from discriminating against an employee “because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing” pursuant to a charge of unlawful discrimination. 42 U.S.C. 2000e–3(a).
Absent direct evidence of retaliation, the plaintiff may demonstrate circumstantial
evidence of retaliation through the McDonnell Douglas burden-shifting framework.
Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the
aggrieved employee “create[s] a presumption that the adverse action was the
product of an intent to retaliate” by making out a prima facie case of retaliation.
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Brown, 597 F.3d at 1181 (quoting Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir.
2009)). The burden then shifts to the defendant employer “to rebut the
presumption by articulating a legitimate, non-discriminatory reason for the adverse
employment action.” Id. (quoting Bryant, 575 F.3d at 1308). The employer’s
legitimate, nondiscriminatory reason for the adverse employment action destroys
the presumption of retaliation but allows the plaintiff employee an opportunity to
prove his case through additional evidence demonstrating that the employer’s
reason is a pretext for unlawful retaliation. Id. at 1181–82 (quoting Bryant, 575 F.3d
at 1308).
A plaintiff employee establishes a prima facie case of retaliation by
demonstrating that (1) she engaged in statutorily protected activity; (2) she
suffered an adverse employment action; and (3) that a causal connection exists
between the protected activity and the adverse employment action. Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). It is undisputed that
Watson engaged in statutorily protected activity.
Only one of the acts Watson avers are retaliatory qualifies as an adverse
employment action, however. In the retaliation context, an adverse employment
action is one that might “dissuade[] a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
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548 U.S. 53, 68 (2006). The adversity must be material, beyond “those petty
slights or minor annoyances that often take place at work and that all employees
experience.” Id. There is little doubt that “[a] reduction in an employee’s hours,
which reduces the employee’s take-home pay, qualifies as a tangible employment
action.” Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th
Cir. 2006). Clark’s unrelated comment, by contrast, more closely resembles a
“simple lack of good manners” that would not deter a reasonable employee from
lodging a complaint. See White, 548 U.S. at 68. Further, any issue Watson raises
with Jones’s failure to “do anything about” Jernigan is not an adverse employment
action “because [Jones’s] actions were not taken against [Watson] herself.” See
Entrekin v. City of Panama City, 376 F. App’x 987, 995 (11th Cir. 2010)
(“[Defendant’s] failure to take action against other individuals does not constitute
an adverse employment action, because [plaintiff] herself suffered no harm.”
(citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001))).
Finally, Watson’s own decision to file for bankruptcy is not an action taken by her
employer, and to the extent she alleges she had to file for bankruptcy due to the
reduction in her hours, this Court considers the filing as part of the reduction.
Watson has established a nexus between her complaints about sexual
harassment and the reduction in her work hours. A causal connection between the
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protected activity and the adverse employment action exists if the plaintiff shows
that these two actions “were not wholly unrelated.” See Brungart v. BellSouth
Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000). The temporal
proximity of the adverse employment action to the protected activity, if “very
close,” may be “sufficient to establish an inference of retaliation.” Brown, 597 F.3d
at 1182. The record demonstrates that prior to making a complaint to Emerson,
Watson averaged about fifty hours per two-week period. Following her transfer to
the University of Alabama location and her subsequent filing of the EEOC charge,
however, Watson worked only forty hours per two-week period beginning on May
18, 2015, and lasting until approximately August 2015. 3 Additionally, there is some
evidence that the ultimate decisionmaker, Clark, “was aware of the protected
conduct at the time of the adverse employment action.” Brungart, 231 F.3d at 799.
Watson testified that she overheard a phone call during which Jones informed
Clark that Watson would be transferring, and she believes that Jones called Clark in
order to ask Clark to “retaliate against [Watson].” Given the temporal relationship
between Watson’s filing of an EEOC complaint and the reduction in her hours and
the undisputed fact that a conversation between Jones and Clark took place, these
events are not “wholly unrelated.” See id. Because Watson has established a prima
3

Watson testified at her deposition that her hours were reduced only for two weeks following her
transfer, but the payroll records reveal otherwise.
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facie case of retaliation with respect to the reduction in her work hours, the burden
shifts to ARG to show that Watson’s hours decreased for a legitimate,
nondiscriminatory reason.
ARG attributes the reduction in Watson’s hours to a significant decrease in
business at the University of Alabama Arby’s location during portions of the year
when students are not on campus. Watson transferred to the University of Alabama
store in late April, which coincides with the end of the university’s academic year.
Upon Watson’s transfer, Clark informed her that part-time employees would be
scheduled to work fewer hours because the restaurant received less business and
needed fewer employees to work. Indeed, Watson’s hours were reduced
throughout the summer, and she resumed working about fifty hours per two-week
period in August 2015, which coincides with the beginning of the academic year.
Watson presents no further evidence that ARG’s articulated reason for the
reduction in her hours is pretext for unlawful retaliation, and the record
demonstrates that even during the periods that Watson worked forty hours, she
continued to receive more hours than other part-time employees. ARG is therefore
entitled to summary judgment on Watson’s retaliation claim.

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C. State-Law Claims
Having granted summary judgment in favor of ARG on Watson’s federal
claims, this Court has “dismissed all claims over which it has original jurisdiction.”
See 28 U.S.C. § 1367(c)(3). It therefore declines to exercise supplemental
jurisdiction over Watson’s state-law claims for assault and battery and invasion of
privacy. Id.; see Murphy v. Fla. Keys Elec. Co-op. Ass’n, 329 F.3d 1311, 1320 (11th Cir.
2003). These claims are therefore due to be dismissed without prejudice so as to
allow her to file the same in state court. If Watson wishes to proceed with these
claims, she must file an action in the appropriate state court within thirty days of
the date of this Order. See 28 U.S.C. § 1367(d) (tolling “the period of limitations”
for a state-law claim over which a federal court may exercise supplemental
jurisdiction “while the claim is pending and for a period of 30 days after it is
dismissed”); Rester v. McWane, Inc., 962 So. 3d 183, 186 (Ala. 2007) (“Under
[§ 1367(d)], the statute of limitations for state-law claims is tolled . . . when a party
seeks to refile in the state court the same state-law claims the party asserted in the
federal court.”).
IV. Conclusion
For the reasons stated above, ARG’s motion for summary judgment is due to
be GRANTED as to the Title VII hostile work environment and retaliation claims.
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Watson’s state-law claims are due to be DISMISSED WITHOUT PREJUDICE. A
separate order consistent with this opinion will be entered contemporaneously
herewith.
DONE and ORDERED on January 30, 2017.

_____________________________
L. Scott Coogler
United States District Judge
186289

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