Ward v. Casual Restaurant Concepts, Inc.
Filing
28
ORDER granting in part and denying in part 26 Motion for summary judgment in that it is DENIED as to Count I, Ward's constructive discharge claim in Count II. and CRC's Faragher/Ellerth Affirmative Defense. CRC's Motion for Summary Judgment is GRANTED as to Counts IV,V, and VII,Ward's retaliation claim in Count II, and Ward's request for punitive damages in Counts I and II. Signed by Judge Elizabeth A. Kovachevich on 3/1/2012. (SN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMANDA WARD.
Plaintiff.
Case No. 8:10-CV-2640-EAK-TGW
v.
CASUAL RESTAURANT CONCEPTS
INC., d/b/a APPLEBEE'S,
Defendant.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS cause is before the Court on Defendant, Casual Restaurant Concepts, Inc.'s
("CRC"), Motion for Summary Judgment. (Doc. 26). The Court reviewed the Motion for
Summary Judgment, as well as Plaintiff, Amanda Ward's ("Ward"). Response in Opposition
thereto. (Doc. 27). For the reasons set forth below, the Motion for Summary Judgment is
GRANTED in part and DENIED in part.
Statement of the Facts
The following facts are submitted by the parties in support and/or in opposition to the
motion for summary judgment. The Court recognizes these as "facts" only in regard to resolution
of the pending motion.
CRC is a Florida corporation that is a franchisee of Applebee's International. Inc., and
owns and operates Applebee's restaurants throughout Central Florida. (Doc. 26-1 ^ 3). Ward
began working at CRC's Big Bend Applebee's restaurant in December 2009 and was employed
by CRC until April 2010. (Doc. 26-3 p. 22). Ward was employed as a full-time host and was
responsible for seating guests and cleaning tables. (Doc. 26-3 p. 24). Chris Harrington
(••Harrington'')
was a manager at the Big Bend Applebee's. and Ward typically worked with
Harrington a few times each week throughout the course of her employment. (Doc. 26-3 p. 26).
Ward alleges that Harrington made unrequited, amorous comments and gestures toward her
during her employment at Applebee's that made her feel uncomfortable. (Doc. 1 *\\ 14).
Harrington, and other managers, purportedly used employees' cell phones, without
permission, to make survey calls to Applebee's national survey hotline posing as actual
customers to give the branch positive performance reviews. (Doc. 27-4 p. 67-72; Doc. 27-5 p.
22-24). Harrington took Ward's cell phone to make survey calls on April 6, 2010. and
forwarded a semi-nude photograph of Ward to his own phone. (Doc. 27-1, Exhibits "E", "F" &
"G"). On April 17. 2010, after looking through the deleted items on her cell phone. Ward
became aware that someone had forwarded her personal photograph to a number that she did not
recognize. (Doc. 26-3 p. 37, 40-41). On April 18, 2010, Ward's co-worker Heather Williams
("Williams*') confirmed that the number the photograph was forwarded to belonged to
Harrington. (Doc. 26-3 p. 41-43). Additionally, Harrington sent Ward's personal photograph to
a restaurant patron and showed the photograph to other Applebee's employees. (Doc. 27-1.
Exhibit "E"). Harrington allegedly told other employees that he and Ward were having a sexual
relationship and that the photograph was taken in his bathroom. (Doc. 26-5, Exhibit "2").
On or around April 21, 2010, Ward informed the Head Manager, Lisa "fully ('Tully"),
that Harrington had taken her cell phone, that he forwarded her scmi-nudc photo to himself and
others, and that he was telling customers and employees that he had a sexual relationship with
Ward. (Doc. 26-3 p. 54). Tully asked Ward to prepare a written statement documenting what
had occurred. (Doc. 26-5, Exhibit "2" ). Additionally, Ward contacted the police and filed a
police report concerning Harrington's actions. (Doc. 27-1. Exhibit "B"). While the matter was
being investigated, Tully told Ward that she could either temporarily transfer to a nearby
Applebee's restaurant or work on shifts when Harrington was not working. (Doc. 26-3 p. 71).
Ward elected to work on the days that Harrington was not working. (Doc. 26-3 p. 157-158).
Ultimately, Harrington was issued a written reprimand, disqualified from promotion for six
months, and was transferred to a different Applebee's restaurant. (Doc. 26-1, Exhibit "2").
Tully informed Ward that Harrington was being transferred to a different location and
that Todd Hunt, a restaurant patron who Harrington sent the photograph to, was required to
delete the photograph from his cell phone. (Doc. 26-3 p. 55. 69). On April 22, 2010. Ward
resigned her employment from Applebee's, claiming that she could not continue to work in an
environment where an unknown number of employees and patrons had seen her private
photograph and heard rumors that she had a sexual relationship with Harrington. (Doc. 1•"" *\\ 3435).
Ward alleges that CRC had actual and constructive knowledge of Harrington's sexually
harassing conduct yet refused to conduct a meaningful investigation and failed to take any
corrective or ameliorative action. (Doc. 1 ^ 36). In particular. Tully failed to consult CRC's
Sexual Harassment Skill Book during the investigation of Ward's claims and failed to
contemporaneously take written statements from each witness while conducting the
investigation. (Doc. 27-6 p. 52-60, 83-84, 90-91).
Standard of Review
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted if
the pleadings, depositions, answers to interrogatories and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby. Inc..
All U.S. 242, 249 (1986). The moving party bears the initial burden of stating the basis for its
motion and identifying those portions of the record demonstrating the absence of genuine issues
of material fact. Celotex Corp. v. Calrett. 411 U.S. 317. 323-324 (1986). That burden can be
discharged if the moving party can show the Court that there is "an absence of evidence to
support the nonmoving party's case." Id. at 323, 325. When the moving party has met this initial
burden, the nonmoving party must then designate specific facts showing that there exists some
genuine issue of material fact in order to defeat summary judgment. Id. at 324. In ruling on statelaw claims, such as the tort claims at issue in the case at bar, the Court must follow state—that is.
Florida—law. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938) (citing Bait. & Ohio R.R. Co. v.
Baugh, 149 U.S. 368, 401 (1893)).
Issues of fact are "genuine" only if a reasonable jury, considering the evidence presented,
could find for the nonmoving party. Anderson, All U.S. at 249. Material facts are those that will
affect the outcome of the trial under governing law. Id. at 248; llickson Corp. v. Northern
Crossarm Co., 357 F.3d 1256. 1259-1260 (11th Cir. 2004). In determining whether a material
issue of fact exists, the court must consider all evidence in the light most favorable to the
nonmoving party. Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (111" Cir. 1983). Ifthe
determination of the case rests on which competing version of the facts or events is true, the case
should be submitted to the trier of fact and the motion for summary judgment should be denied.
Rollins v. TechSouth. Inc.. 833 F.2d 1525, 1531 (11lh Cir. 1987). The weighing ofevidence and
the consideration of the credibility thereof are issues of fact to be determined by thejurv at trial.
See Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294. 1299 (ll1" Cir. 1983)
(stating that the Court's function is not to decide issues of fact, but rather to determine if issues
of fact exist).
Discussion
A.
Sexual Harassment
In Count I, Ward brings a claim of hostile work environment based on sexual harassment
against CRC under Title VII and the Florida Civil Rights Act ("FCRA"). (Doc. 1). Ward's
hostile work environment claim under the FCRA shall be treated the same as her hostile work
environment claim under Title VII. Moren v. Progress Energy, Inc.. 2008 WL 3243860 at *9
(M.D. Fla. Aug. 7, 2008) (noting that, "Florida courts have held that decisions construing Title
VII are applicable when considering the Florida Civil Rights Act").
"To establish a hostile-environment sexual-harassment claim under Title VII based on
harassment by a supervisor, an employee must show: (1) that he or she belongs to a protected
group; (2) that the employee has been subject to unwelcome sexual harassment, such as sexual
advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the
harassment must have been based on the sex of the employee; (4) that the harassment was
sufficiently severe or pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment: and (5) a basis for holding the employer liable."
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999). Here. CRC argues that the
conduct alleged by Ward is neither sufficiently severe nor pervasive as to alter the terms and
conditions of her employment and create a hostile work environment.
To determine whether the harassment was sufficiently severe or pervasive to create a
hostile work environment, both an objective and subjective analysis must be conducted. Id. at
1246. The Supreme Court and the Eleventh Circuit "have identified four factors that should be
considered in determining whether harassment objectively altered an employee's terms or
conditions of employment: (1) the frequency of the conduct; (2) the severity of the conduct; (3)
whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee's job performance." Id.
(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). Under an objective analysis,
"ft]he courts should examine the conduct in context, not as isolated acts, and determine under the
totality of the circumstances whether the harassing conduct is sufficiently severe or pervasive to
alter the terms or conditions of the plaintiffs employment and create a hostile or abusive working
environment." Id. Additionally, "[t]hc 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." Id.
In the case at bar, there are genuine issues of material fact concerning whether the
harassment objectivelyaltered the terms or conditions of Ward's employment and created a
hostile work environment. Examining the four factors set out by the Supreme Court and the
Eleventh Circuit, under the totality of the circumstances, a reasonable jury could find that the
harassment by Harrington objectively altered the terms or conditions of Ward's employment and
created a hostile work environment.
First. Ward argues that the harassment was not an isolated incident—Ward claims she
experienced multiple incidents of sexual harassment because Harrington not only took her
picture for his personal use, but he also showed the picture to other employees and a restaurant
patron, told other employees that he was having a sexual relationship with Ward, and told other
employees that the photograph was taken in his bathroom.
Second. Ward argues that the conduct was sufficiently severe to alter the terms of her
employment because she could only continue to work at Applebces if she were to accept the
condition that multiple coworkers and a restaurant patron had seen her semi-nude photograph.
Further, Ward claims that the harassment caused her to file a police report, also pointing to the
severity of the conduct. (Document 27-1, Exhibit "B").
Third, Ward argues that Harrington's conduct amounts to much than a mere offensive
utterance: Harrington procured her sensitive photograph without permission, showed it to various
employees as well as a restaurant patron, and spread "rumors" about her to other employees.
Ward further argues that she was humiliated by Harrington's harassing conduct. In a written
statement. Ward claims. "[Harrington] has humiliated me and has made it very uncomfortable
for me to work here." (Doc. 26-5, Exhibit "2").
The fourth factor in the objective analysis considers whether the harassing conduct
"unreasonably" interferes with the employee's job performance. Ward testified in her
deposition, and presented testimony by multiple coworkers, that the harassment was sufficiently
severe to interfere with herjob performance. In her deposition, Ward states, "I was just so
humiliated that I couldn't work." Mr. Correa, one of Ward's coworkers, testified in his
deposition that "[fjhere was nothing [Tully] could do to save [Ward's] job." (Doc. 27-3 p. 70).
Further, Miss Williams testified that the only way Applebee's could rectify the situation was to
"take [Harrington] out" and that "you would have to quit on your own," indicating that she
would have felt compelled to quit if she were in Ward's position. (Doc. 27-8 p. 57-58). Here,
the question of "reasonableness" must be determined by thejurv because Ward has presented
evidence that creates a genuine issue of material fact over whether Harrington's harassment
"unreasonably" interfered with her job performance.
Under a subjective analysis, Ward argues that she subjectively perceived the harassment
by Harrington to be sufficiently severe and pervasive to alter the terms or conditions of her
employment. First, Ward argues that she subjectively perceived that harassment to be severe
when she learned that Harrington had taken her semi-nude photograph from her cell phone.
Further, she argues that her subjective feelings of humiliation increased when she learned that
Harrington had shown the photograph to numerous coworkers and a restaurant patron.
Additionally, she subjectively perceived the conduct to be severe when she learned that
Harrington allegedly spread "rumors" to other employees that he was having a sexual
relationship with Ward. Here, the jury must determine whether Ward's subjective feelings that
the conduct was sufficiently severe to alter the terms or conditions of her employment were
objectively reasonable.
For the reasons set forth above, we find that a reasonable jury, considering the evidence,
could find that the harassment experienced by Ward was sufficiently severe or pervasive to alter
the terms and conditions of employment and create a hostile work environment; thus, summary
judgment is precluded on Ward's hostile work environment claims under Title VII and the
FCRA. This Court notes that denying summary judgment as to Ward's hostile work
environment was a "close call." However, this Court has chosen to remain cautious and grant
Ward the opportunity to present her evidence at trial and allow a jury to determine whether she
will ultimately prevail in her sexual harassment claims under Title VII and the FCRA.
B.
Faragher/Ellerth Affirmative Defense
CRC argues that even if Ward can establish actionable sexual harassment claims, the
affirmative defense set forth in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and
Burlington Indus.. Inc. v. Ellerth, 524 U.S. 742 (1998). precludes her from recovering on those
claims. (Doc. 15 p. 9). "In order to successfully utilize the Faragher/Ellerth defense, an
employer must prove that: (1) the employer exercised reasonable care to prevent and promptly
correct the sexual harassment; and (2) the employee unreasonably failed to take advantage of any
protective or corrective opportunities offered by the employer, or otherwise failed to avoid
harm." Speaks v. City ofLakeland, 315 F. Supp. 2d 1217, 1227 (M.D. Fla. 2004) (quoting
Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765).
However, an employer may only raise the Faragher/Ellerth defense if there was no
"tangible employment action" taken by the harassing supervisor. Id. at 1224. A tangible
employment action requires more than actionable harassment: "[a] tangible employment action
constitutes 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." Ellerth. 524 U.S. at 761.
Here, there is no evidence that Harrington engaged in any tangible employment action
against Ward. Therefore, it must be decided whether any genuine issue of material fact exists as
to the required elements of the Faragher/Ellerth defense. For the reasons set forth below,
summary judgment is denied as to CRC's Faragher/Ellerth defense because genuine issues of
material fact exist as to the required elements of the defense.
i.
CRC's Reasonable Care to Prevent Sexual Harassment
First, CRC argues that it exercised reasonable care to prevent the alleged sexual
harassment by Harrington. The Eleventh Circuit has found that an employer exercises
reasonable care to prevent sexual harassment when the employer maintains and promulgates a
comprehensive anti-harassment policy that contains reasonable complaint proceduresand serves
a deterrent purpose. See Baldwin v. Blue Cross/Blue Shield ofAla., 480 F.3d 1287, 1306 (11th
Cir. 2007): Walton v. Johnson &Johnson Sens., Inc., 347 F.3d 1272, 1286-1287 (11th Cir.
2003). CRC claims that it exercised reasonable care to prevent the alleged sexual harassment by
maintaining an anti-sexual harassment policy(Doc. 26-1, Exhibit "1") and disseminating that
policy to all new employees during orientation. The policy states that CRC will not tolerate
sexual harassment, provides that no employee will be subject to retaliation for reporting sexual
harassment, and provides alternative individuals to whom complaints of harassment may be
made. (Doc 26-1, Exhibit"I").
Assuming, without deciding, that CRC has established that it exercised reasonable care to
prevent the alleged sexual harassment, summary judgment must still be precluded becausethere
are genuine issues of material fact as to whether CRC exercised reasonable care to correct the
harassment and whether Ward unreasonably failed to take advantage of any reasonable
corrective action taken by CRC.
ii.
CRC's Reasonable Care to Correct Sexual Harassment
Here, CRC argues that it took reasonable care to correct the alleged sexual harassment by
conducting employee interviews, taking immediate steps to ensure that Harrington and Ward did
not work together during the investigation, requiring Harrington and Hunt to delete Ward's
photograph, issuing Harrington a written reprimand (Doc 26-1. Exhibit "2"), removing
10
Harrington from the promotion list for six months, and transferring Harrington a different
Applebee's location.
However, Ward argues that CRC failed to take reasonable corrective action. "A
threshold step in correcting harassment is to determine if any occurred, and that requires an
investigation that is reasonable given the circumstances." Baldwin, 480 F.3d at 1303. Ward
argues that Tully failed to conduct a meaningful investigation by failing to consult CRC's Sexual
Harassment Skill Book during the investigation of Ward's claims and failing to
contemporaneously take written statements from each witness while conducting the
investigation. Ward also argues that Tully's investigation was insufficient because she failed to
identify all of the individuals who had been shown her photograph.
"Additionally, remedial measures are deemed reasonable when they "stop the harassment,
correct its effects on the employee, and ensure that the harassment does not recur.'" Here, Ward
argues that CRC did not correct the effects of Harrington's harassment by failing to take
corrective measures, such as additional sexual harassment training or sensitivity training, to
ensure that Ward could continue to work at the Big Bend Applebee's without further
embarrassment or humiliation. (Doc. 27-3 p. 71: Doc. 27-5 p. 38).
Based on the above stated facts, there is a genuine issue of material fact as to the
reasonability of CRC's corrective actions, thus, this issue is appropriate for the jury and
summary judgment is precluded.
iii.
Ward's Reasonable Use of Preventative or Corrective Opportunities
"An employee's failure to take advantage of preventive or corrective measures can take
two forms—not using the procedures in place to promptly report any harassment and not taking
advantage of any reasonable corrective measures the employer offers after the harassment is
reported." Baldwin, 480 F.3d at 1303. CRC argues that Ward failed to take advantage of CRC's
reasonable corrective measures by deciding to resign her employment before reporting
Harrington's actions and by resigning even aftershe became aware that Harrington was being
transferred to another store.
However, Ward argues that even if CRC's corrective actions are found to be reasonable,
Ward's resignation of employment was reasonable under the totality of the circumstances. Ward
presents testimony by Mr. Correa, another Applebee's employee, who states that "there was
nothing [Tully] could do to save [Ward's] job." (Doc. 27-3 p. 70). Considering the context of
Ward's employment, where multiple employees had previously seen her semi-nude photograph
and heard rumors that she had a sexual relationship with Harrington, a reasonable jury,
considering the evidence, could find that it was reasonable for Ward to resign employment,
despite Harrington's transfer. Therefore, summary judgment is precluded as to CRC's
Faragher/Ellerth defense.
C.
Constructive Discharge
In Count II, Ward brings a claim of constructive discharge against CRC under Title VII
and the FCRA. Ward's constructive discharge claim under the FCRA shall be treated the same
as her constructive discharge claim under Title VII. Moren, 2008 WL 3243860 at *9 (noting that,
"Florida courts have held that decisions construing Title VII are applicable when considering the
Florida Civil Rights Act"). "A constructive discharge occurs when a discriminatory employer
imposes working conditions that are 'so intolerable that a reasonable person in [the employee's]
position would have been compelled to resign."' Fitz v. Pugmire Lincoln-Mercury, Inc., 348
F.3d 974, 977 (11th Cir. 2003) (quoting Poole v. Country ClubofColumbus, Inc., 129 F.3d 551,
553 (11th Cir.1997)). Additionally, "[t]he standard for proving constructive discharge is higher
12
than the standard for proving a hostile work environment." Hipp v. Liberty Nat'I Life Ins.
Co., 252 F.3d 1208, 1231 (1 lth Cir.2001).
Viewing the evidence in the light most favorable to the plaintiff. Ward has presented
evidence that Harrington procured her sensitive photograph without permission, showed it to
various employees as well as a restaurant patron, and spread "rumors" about her to other
employees. Ward claims that she was forced to resign employment because she was humiliated
and that she could only continue to work at Applebee's if she were to accept the condition that
multiple coworkers and a restaurant patron had seen her semi-nude photograph. Ward further
claims that transferring to another location was not a viable option because she did not own a car
and did not have available transportation to get to and from the alternative work site, which was
twenty miles further from her home. (Doc. 27-8 p. 23). Here, the question of "reasonableness"
must be determined by thejurv because Ward has presented evidence that creates a genuine issue
of material fact as to whether Harrington's harassment caused her working conditions to be so
intolerable that a reasonable person in Ward's position would have been compelled to resign.
D.
Retaliation
In Count II, Ward brings a claim of retaliation against CRC under Title VII and the
FCRA. Ward's retaliation claim under the FCRA shall be treated the same as her retaliation
claim under Title VII. Moren, 2008 WL 3243860 at *9 (noting that, "Florida courts have held
that decisions construing Title VII are applicable when considering the Florida Civil Rights
Act").
To establish a primafacie case of retaliation under Title VII, Ward must prove that: (1)
she engaged in statutorily protected activity (2) she suffered an adverse employment action: and
(3) there is a causal connection between the participation in the protected activity and the adverse
13
employment decision." Id. Here, it is undisputed that Ward engaged in statutorily protected
activity by complaining to Tully about Harrington's actions. However, Ward is unable to
establish that she suffered an adverse employment action. Ward admitted in her deposition that
she chose the option of working on days when IIarrington was not scheduled and that she did not
lose any work lime by choosing this option. (Doc. 26-3 p. 71-72). Further, Ward admits thai
Tully did not prohibit her from working at Applebee's after she made her complaint (Doc. 26-3
p. 71). Ward also admitted that she did not haveany indication or evidence that anyone at
Applebee's intended to retaliate against her after she made her complaint (Doc. 26-3 p. 128).
For the reasons stated above, Ward has failed to present facts establishing the second and
third elementsof aprimafacie case of retaliation. Because there is a complete absence of
evidence that CRC retaliated against Ward after she made her complaint, summary judgment is
granted as to Ward's retaliation claim in Count II of the complaint.
E.
Punitive Damages
Ward seeks punitive damages for the claims asserted in Counts I and II of the complaint
pursuant to the Civil Rights Act of 1991. (Doc. 1 p. 7-9).
Punitive damages are available under the Civil Rights Act of 1991 if "the complaining
party demonstrates that the respondent engaged in a discriminatory practice or discriminatory
practices with malice or with reckless indifference to the federally protected rights of an
aggrieved individual." 42 U.S.C. § 1981(b)(1). In order for the issue of punitive damages to
reach a jury in a Title VII case, a plaintiff "must come forward with substantial evidence that the
employer acted with actual malice or reckless indifference to [the plaintiffs] federally protected
rights." Miller v. Kenworth ofDolhan, Inc., 277 F.3d 1269, 1280 (11th Cir. 2002) (citing Kolslad
v. Am. Dental Assn., 527 U.S. 526 (1999)). To obtain punitive damages, "a Title VII plaintiff
14
must show either that the discriminating employee was 'high up the corporate hierarchy' or that
'higher management' countenanced or approved [the employee's] behavior. " Dudley v. WalMart Stores, Inc., 166 F.3d 1317. 1323 (I lth Cir. 1999).
Here, there is no evidence that CRC acted with actual malice or reckless indifference to
Ward's federally protected rights. Moreover, there is no evidence that any "higher management"
engaged in or approved of the discriminatory acts of which Ward alleges. See Id. (finding that
store managers of Wal-Mart were not considered to be high enough in Wal-Mart's corporate
hierarchy to allow their discriminatory acts to be basis for punitive damages against the
corporation). First, Harrington is not high enough in the corporate hierarchy to be considered
"higher management;" therefore, his discriminatory behavior is not sufficient to establish a basis
for punitive damages against the corporation. Id. Assuming, without deciding, that Tully could
potentially be classified as "higher management" for purposes of establishing punitive damages,
there is no evidence that Tully condoned or approved Harrington's discriminatory behavior.
For the reasons set forth above, summary judgment is granted as to Ward's requests for
punitive damages asserted in Counts I and II.
F.
State Tort Claims
Ward has asserted state tort claims for invasion of privacy (intrusion), invasion of privacy
(public disclosure of private facts), and defamation in Counts IV, V, and VII of the complaint,
respectively. Because summary judgment must be granted as to all relevant counts if vicarious
liability is not established, it must first be determined whether Ward's charge of vicarious
liability survives summary judgment.
"Under the doctrine of respondent superior, an employer cannot be held liable for the
tortious or criminal acts of an employee, unless the acts were committed during the course of the
15
employment and to further a purpose or interest, however excessive or misguided, of the
employer." Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So. 2d 353, 356 (Fla. 3d Dist.
App. 2001). In order for conduct to be considered within the scope of employment, "Florida law
requires that the conduct (1) must have been the kind for which the employee was employed to
perform; (2) must have occurred within the time and space limits of his employment; and (3)
must have been activated at least in part by a purpose to serve the employment." Spencer v.
Assurance Co. ofAm., 39 F.3d 1146. 1150 (11th Cir.1994): Iglesia Cristiana, 783 So. 2d at 357.
Assuming, without deciding, that Harrington's conduct was of the kind for which he was
employed to perform and occurred in the time and space limits of his employment. CRC still
cannot be held liable for Harrington's actions because the purpose of his conduct was not to
serve the employment.
Here. Harrington's conduct was not motivated by a purpose to serve CRC. Ward argues
that Harrington was motivated to serve CRC's business interests by using Ward's cell phone to
submit a positive call to a customer survey line. However, this argument must be rejected.
Harrington testified that the survey calls were intended for customers to rate their "food and
service" at a particular restaurant location. (Doc. 27-4 p. 66). He further testified that employees
were not permitted to make survey calls. (Doc. 27-4 p. 72, 75). Calls by employees posing as
customers served to provide incorrect survey results and obviously undermined the company's
interests in legitimately evaluating and improving customer service at individual restaurants.
Further, Harrington testified that he did not make the survey calls to benefit Applebee's. (Doc
27-4 p. 73). Ward also conceded in her testimony that Harrington was not acting on behalf of
the company or benefiting the company when he forwarded her picture to himself. (Doc 26-3 p.
16
132-133). Therefore, there is no evidence that Harrington's conduct served to further a purpose
or interest of CRC.
Further, in response to CRC's motion to dismiss. Ward argued that Harrington took
Ward's cell phone and had access to her personal photograph through the exercise of his
managerial authority in implementing Applebee's cell phone policy. However, this argument
must also fail because there is no evidence that Harrington took Ward's cell phone through the
exercise of his managerial authority in implementing Applebee's cell phone policy. Here,
Harrington took Ward's cell phone, made a survey call, sent her photograph to himself, then
returned her phone to the host stand. This evidence does not establish that Harrington was
exercising his managerial authority in implementing Applebee's cell phone policy.
Alternatively, Ward argues that CRC ratified or condoned Harrington's tortious conduct.
(Doc 1* 41). Under Florida law. "[rjatilication of an agent's prior unauthorized actions occurs
when the principal is fully informed of the agent's act and affirmatively manifests an intent to
approve that act." Stalley v. Transitional Hospital Corp. of Tampa, Inc., 44 So. 3d 627, 631 (Fla.
2d Dist. App. 2010). Moreover, "ratification cannot be presumed simply by the principal's lack
of action." Id. Here, there is no evidence that CRC ever manifested an intent to approve of
Harrington's conduct; thus, this argument must also fail. For the reasons set forth above,
summary judgment is granted as to Counts IV, V, and VII. Accordingly it is
17
ORDERED that CRC's Motion for Summary Judgment is DENIED as to Count I,
Ward's constructive discharge claim in Count II. and CRC's Faragher/Ellerth Affirmative
Defense. CRC's Motion for Summary Judgment is GRANTED as to Counts IV,V, and VII,
Ward's retaliation claim in Count II, and Ward's request for punitive damages in Counts I and II.
DONE AND ORDERED in Chambers at Tampa. Florida, this /^day ofMarch,
2012.
Copies to: All parties and counsel of record.
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