Charest et al v. Sunny-Aakash, LLC et al
Filing
53
ORDER: Defendant Sunny-Aakash, LLC's Dispositive Motion for Summary Judgment 37 is GRANTED in part and DENIED in part as stated herein. Signed by Judge James S. Moody, Jr. on 9/20/2017. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RUTH C. CHAREST and
JENNIFER N. KUFRIN,
Plaintiffs,
v.
CASE NO: 8:16-CV-2048-T-30JSS
SUNNY-AAKASH, LLC, agent of Holiday
Inn Express Hotel & Suites Spring Hill, and
JAYPRAKASH PANJABI, individually, also
know as Jay Panjabi,
Defendants.
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ORDER
THIS CAUSE comes before the Court upon Defendant Sunny-Aakash, LLC’s
Dispositive Motion for Summary Judgment (Dkt. 37) and Plaintiffs’ Response in Opposition
(Dkt. 44). The Court, having reviewed the motion, response, record evidence, and being
otherwise advised in the premises, concludes that the motion should be granted in part and
denied in part. Specifically, Defendant’s motion is granted to the extent that it is entitled to
summary judgment on Plaintiffs’ race and national origin claims. Defendant’s motion is
denied with respect to Plaintiffs’ sexual harassment and retaliation claims—these claims will
be resolved by the trier of fact.
BACKGROUND
This is an action brought by Plaintiffs Ruth Charest and Jennifer Kufrin against their
former employer, Sunny-Aakash, LLC, that owns and operates a Holiday Inn Express Hotel
in Spring Hill, Florida (hereafter referred to as “Sunny-Aakash” or “Defendant”), and against
Jayprakash Panjabi, Holiday Inn’s general manager during the relevant time.1 Panjabi is also
an owner of Sunny-Aakash. Charest and Kufrin allege the following claims against SunnyAakash based on Panjabi’s treatment of them during their employment: claims under 42
U.S.C. Section 1981 for discrimination and harassment because of race and national origin
(Count I of the Second Amended Complaint); claims of sexual harassment under the Florida
Civil Rights Act (“FCRA”) (Count II of the Second Amended Complaint); and claims of
retaliation under the FCRA (Count III of the Second Amended Complaint).
Sunny-Aakash moves for summary judgment on the entirety of Plaintiffs’ claims. The
facts, accepted in a light most favorable to Plaintiffs, the non-movants, now follow with
respect to each Plaintiff.
Plaintiff Ruth Charest:
In April of 2013, Panjabi, an Indian male, hired Charest, a Filipino female, to work
in Sunny-Aakash’s housekeeping department. Charest worked for Sunny-Aakash from April
2013, until late May 2016. Charest was subjected to the supervision, authority, and control
of Panjabi during her employment. Panjabi determined Charest’s rate of pay, the number of
1
Plaintiffs reached a settlement with individual Defendant Panjabi and filed a notice of
dismissal of Panjabi with prejudice. See (Dkts. 41, 51, 52).
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hours she worked, and her job assignments. He had complete firing authority. When Panjabi
trained Charest on the hotel’s policies, including policies on sexual harassment, he told her
to contact him directly to report any issues. Panjabi frequently told Charest that he was her
boss and that he owned the hotel.
The record reflects that throughout her three years of employment at Sunny-Aakash,
Panjabi threatened Charest that if she did not give him oral sex and have sexual intercourse
with him, she would lose everything—her job, her family, her husband—and she would be
sent back to the Philippines. Panjabi frequently told Charest that she should be willing to
have sex with him because she was Filipino. Charest was afraid of Panjabi, who is a very
strong and intimidating man. Charest is a small woman, less than five feet tall.
According to Charest, Panjabi forced Charest to give him oral sex throughout her
employment. She testified that he would frequently call her into a vacant hotel room, under
the guise of requesting that she clean the room, and then he would pull down his pants, take
out his penis, and tell her to give him oral sex. He would grab her by the head and push it
down on his penis. Although Charest told Panjabi no and tried to reject him, she gave into
his demands because she was scared of Panjabi and could not risk losing her job.
Panjabi would also corner Charest in the hotel’s laundry room and force her to give
him oral sex. Charest testified that she constantly told Panjabi that she did not want to give
him oral sex but he would threaten to fire her if she did not give in to his sexual demands.
Panjabi also demanded that Charest have sexual intercourse with him. According to Charest,
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he would wait until they were alone in a hotel room, grab Charest’s breasts, remove her
clothes, and then force himself on her.
The record reflects that Charest had frequent coerced oral sex and sexual intercourse
with Panjabi throughout her employment. After the sexual incidents, Panjabi would threaten
Charest that if she reported his behavior she would be in “big trouble.” Panjabi told Charest
that he was powerful and could do anything he wanted, including terminating her and
preventing her from finding another job. Panjabi also said that there was no one at the hotel
who was above him; he was the “big boss.”
Charest testified that on one occasion Panjabi forced her to have sexual intercourse
with Panjabi and his friend “Kevin.” The men forced Charest to give them oral sex and then
took turns having sexual intercourse with her.
Panjabi also forced Charest and Plaintiff Jennifer Kufrin to kiss each other and then
engage in group sex with him. Panjabi took turns having sex with the women.
The record reflects that Panjabi told Charest that because she was Filipino she should
be willing to provide sex to Indian men who he said were superior.
In early May of 2016, Charest decided that she was finished giving into Panjabi’s
sexual demands. Charest testified that she felt more powerful knowing that Kufrin, who
Panjabi was also sexually abusing, was a witness. Before that, she felt like she would not be
believed because she was in housekeeping and Panjabi was powerful.
In late May of 2016, Panjabi demanded that Charest give him oral sex. Charest
refused. Panjabi started yelling at her and Charest slapped him on his face. Panjabi then
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terminated her. According to Charest, Panjabi terminated her because she refused to give
him oral sex.
Plaintiff Jennifer Kufrin:
In July of 2015, Panjabi hired Kufrin to work at the hotel’s breakfast bar. Kufrin
worked for Sunny-Aakash from July 2015, until late May 2016. Kufrin was subject to the
supervision, authority, and control of Panjabi. He determined her hours, rate of pay, and job
duties.
During her employment, Panjabi constantly touched Kufrin and made comments about
her body. Panjabi told Kufrin repeatedly that because she was “white trash” from Spring Hill
she should provide him with sexual favors. Thereafter, Panjabi frequently told Kufrin to go
to an empty hotel room and wait for him. When she arrived, Panjabi would pull down his
pants, point to his penis, and tell her to “make it hard.” If Kufrin refused, Panjabi grabbed
her and pushed her down.
Panjabi threatened Kufrin that if she did not have sexual intercourse with him he
would replace her. She testified that she believed that he would terminate her if she did not
give in to his sexual demands. Kufrin began meeting Panjabi in vacant hotel rooms and other
places at the hotel, like Panjabi’s office, at his demands and allowed Panjabi to have sexual
intercourse with her. He also frequently forced her to give him oral sex. When she refused,
he got angry and threatened her with termination. When she gave in to Panjabi, he would
reward her with extra hours and promotions.
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On the occasions when Kufrin refused Panjabi’s sexual demands, Panjabi would tell
her that white women were lazy, stupid, and garbage. He frequently told Kufrin that he and
his Indian investors would dominate the “white trash” who lived in Spring Hill. He said he
could get her to do what he wanted because he had power and money. Panjabi told Kufrin
repeatedly that she was “white trash” and that white women from Spring Hill were only good
for providing sex to powerful men like Panjabi. Kufrin testified that the only time she was
disciplined for poor performance was when she would not give in to Panjabi’s sexual
advances. She was afraid to tell anyone about Panjabi’s behavior because she needed to keep
her job and Panjabi told her she would never work again if she complained.
Kufrin testified that on one or two occasions Panjabi made her and Charest engage in
group sex with him. He made them kiss and touch each other, give him oral sex, and then
he took turns having sexual intercourse with them while the other one watched. Panjabi told
them that if they did not give in to him they would be terminated.
According to Kufrin, she could not complain to anyone about Panjabi because he was
the only manager and supervisor—“there was nobody to go to.” She testified that Panjabi
“always” said that he was the manager, the boss, and the owner, and that if Kufrin had any
problems at work, she should go to him.
In approximately March of 2016, Panjabi started to demand that Kufrin have sex with
him and his friends. He also started to demand anal sex. Kufrin refused these demands and
told Panjabi that what he was doing was illegal. At some point in late May of 2016, Panjabi
demanded oral sex from Kufrin and she refused. Panjabi then fired her. According to
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Kufrin, Panjabi terminated her employment because she refused to comply with his sexual
demands.
SUMMARY JUDGMENT STANDARD
Motions for summary judgment should be granted only when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
show there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The existence of some factual disputes between the litigants will not defeat an
otherwise properly supported summary judgment motion; “the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (emphasis in original). The substantive law applicable to the claimed causes of action
will identify which facts are material. Id. Throughout this analysis, the court must examine
the evidence in the light most favorable to the non-movant and draw all justifiable inferences
in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, whether or not accompanied by affidavits, the
nonmoving party must go beyond the pleadings through the use of affidavits, depositions,
answers to interrogatories and admissions on file, and designate specific facts showing that
there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be
significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).
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This Court may not decide a genuine factual dispute at the summary judgment stage.
Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual
issues are present, the Court must deny the motion and proceed to trial.” Warrior Tombigbee
Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute about a
material fact is genuine and summary judgment is inappropriate if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248;
Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must exist a
conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
DISCUSSION
I.
Plaintiffs’ Section 1981 Race and National Origin Claims
Section 1981 provides all persons the same right to “make and enforce contracts . .
. as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). For purposes of the statute, the term
“make and enforce contracts” includes the “making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions
of the contractual relationship.” 42 U.S.C. § 1981(b). Section 1981 prohibits material
adverse actions in private employment based on the employee’s race. See CBOCS West, Inc.
v. Humphries, 553 U.S. 442, 450-51 (2008).
Notably, section 1981 prohibits race
discrimination against whites as well as nonwhites. See McDonald v. Santa Fe Trail Transp.,
427 U.S. 273, 287 (1976). Section 1981 also prohibits an employer from retaliating against
an employee for opposing or complaining about conduct that violates section 1981’s
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substantive prohibition against race discrimination. See CBOCS West, 553 U.S. at 446;
Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1257-58 (11th Cir. 2012); Bryant
v. Jones, 575 F.3d 1281, 1301 (11th Cir. 2009).
Defendant argues that it is entitled to judgment on Plaintiffs’ racial and national origin
harassment claims because the comments Panjabi made about Plaintiffs’ race were not
sufficiently severe or pervasive to alter the terms and conditions of their employment and
create an abusive working environment. The Court agrees. To establish a prima facie case
of a hostile work environment, an employee must prove: that she belongs to a protected
group; that she has been subject to unwelcome harassment; that the harassment was based
on a protected ground, such as race or sex; and that the harassment was severe or pervasive
enough to alter the terms and conditions of her employment. See Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
In order for harassment to be“severe or pervasive,” the offensive behavior must
result in both an environment that a reasonable person would find hostile or abusive and an
environment that the victim subjectively perceives ... to be abusive.
See id. at
1276 (quotations omitted). District courts should consider: the frequency of the conduct; its
severity; whether the conduct was threatening or humiliating, or was instead an isolated
offensive utterance; and whether the conduct unreasonably interfered with the employee’s
performance. See id.
Here, the record reflects that Panjabi’s comments about Plaintiffs’ race were not
severe and pervasive as a matter of law. Charest testified that Panjabi told her on about three
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occasions that, because she was Filipino, she should provide sex to Indian men. These three
comments, made over a period of three years, fall woefully short of establishing severe and
pervasive conduct. See McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir. 2008) (instances
of racially derogatory language over a period of two-and-a-half years were “too sporadic and
isolated” to qualify as severe or pervasive).
Kufrin testified that Panjabi called her “white trash” and said to her “all the time” that
white women are “stupid, garbage, and lazy.” This is also insufficient to establish a
harassment claim because, while these comments were frequent, the comments were not
severe enough to create an abusive working environment or a hostile work environment. See
Mendoza v. Borden, 195 F.3d 1238, 1253-54 (11th Cir. 1999) (“Title VII was never intended
to protect employees from all unpleasant and rude conduct in the workplace”). Notably,
neither Plaintiff testified that Panjabi’s comments about their race impacted their work
environment. Accordingly, neither Plaintiff has established a genuine issue for trial with
respect to their racial harassment claims.
Finally, the record is devoid of a genuine issue of fact on any claim that Panjabi
subjected Plaintiffs to adverse actions based on their race. Plaintiffs consistently testified
that any adverse actions, including their terminations, were based on their refusal of Panjabi’s
sexual demands. Although this may establish a claim based on the protective characteristic
of sex, it does not establish a race-based claim.
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In sum, Defendant is entitled to summary judgment on Plaintiffs’ claims of
discrimination and harassment based on race and national origin (Count I of the Second
Amended Complaint).
II.
Plaintiffs’ Sexual Harassment Claims
Defendant assumes, for the limited purpose if its motion for summary judgment, that
Plaintiffs may be able to establish hostile work environment claims based on Panjabi’s
sexually harassing behavior. Defendant argues that it is still entitled to judgment on these
claims because the Faragher/Ellerth affirmative defense applies. In Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S.
742 (1998), the Supreme Court held that an employer is not vicariously liable for a hostile
work environment created by a supervisor if “the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior” and the “employee
unreasonably failed to take advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807.
Defendant’s argument that the Faragher/Ellerth defense applies in this case misses
the mark for two reasons. First, it is bedrock law that the defense does not apply when the
supervisor’s harassment results in a “tangible employment action” like termination. In that
scenario, the employer is strictly liable regardless of any preventive or corrective measures
in place. See id; Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 421-22 (11th
Cir. 1999) (“[A]n employer is vicariously liable for sexual harassment committed by a
supervisor when the harassment results in a ‘tangible employment action’ (such as
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termination or unwanted reassignment) against the victimized employee.”) (quoting Ellerth,
524 U.S. at 764-65; Faragher, 524 U.S. at 807-08) . Here, both Plaintiffs unequivocally
testified that Panjabi’s sexual harassment culminated in their terminations.
Second, even assuming for the sake of argument that Panjabi’s harassment did not
result in a “tangible employment action,” the record is rife with facts that Panjabi was
Defendant’s “alter ego,” another preclusion to asserting a Faragher/Ellerth defense. In other
words, Panjabi held “such a high position in the company that he could be considered the
employer’s ‘alter ego,’” which renders Defendant strictly liable for his behavior. See Dees,
168 F.3d at 421-22.
In this scenario, Defendant would also not be entitled to the
Faragher/Ellerth defense. See id; see also Smith v. Akstein, 408 F. Supp. 2d 1309, 1329-30
(N.D. Ga. 2005) (“[T]his Court is aware of no authority in this Circuit or elsewhere holding
that an individual who is indisputably within such a position as to be a company’s alter ego
does not invoke strict liability on the company for his harassing behavior.”).
It is worth emphasizing that the record reflects that Panjabi was an owner and general
manager of Defendant. He hired Plaintiffs. He controlled their hours, rates of pay, any
promotions or demotions, and he had ultimate firing authority. Panjabi frequently told
Plaintiffs that he was their only boss and that if they had any complaints they were to
complain to only him. Panjabi constantly told Plaintiffs that he was an owner of Defendant
and could do what he wanted because he had the “power.” To apply the Faragher/Ellerth
defense under these circumstances would be contrary to binding law.
Accordingly,
Defendant’s motion is denied with respect to Plaintiffs’ sexual harassment claims.
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III.
Plaintiffs’ Retaliation Claims
Plaintiffs’ retaliation claims are premised on the timing of their refusal to engage in
further sexual demands with Panjabi and their terminations. According to Plaintiffs, when
they told Panjabi that they were not going to give him oral sex and that what he was doing
was wrong, Panjabi immediately terminated their employment. Defendant argues that it is
entitled to summary judgment because the rejection of sexual advances does not constitute
“protective activity” under Title VII. The Court disagrees that such a blanket rule applies.
Title VII’s anti-retaliation provision prohibits employers from retaliating against an
employee who “oppose[s] any practice made an unlawful employment practice by this
subchapter . . .” 42 U.S.C. § 2000e-3(a). This clause is known as the “opposition clause.”
Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tenn., 555 U.S. 271, 274 (2009).
While the opposition clause leaves the term “oppose” undefined, courts have generally
viewed an employee as engaging in protected opposition when she voices concern about or
resistance to violations of Title VII. See id. at 276 (“When an employee communicates to
her employer a belief that the employer has engaged in . . . a form of employment
discrimination, that communication virtually always constitutes the employee’s opposition
to the activity”) (internal citations omitted).
Although not addressed by either party in their filings, the Court is mindful that a
circuit split exists surrounding the issue of “whether a person who rejects a
supervisor’s sexual advances has engaged in protected activity.” Tate v. Executive Mgmt.
Servs., Inc., 546 F.3d 528, 532 (7th Cir. 2008)(comparing LeMaire v. La. Dep’t of Transp.
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& Dev., 480 F.3d 383, 389 (5th Cir. 2007)2 (holding that a single, express rejection
of sexual advances does not constitute “protected activity” for purposes of a retaliation
claim) with Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (concluding that
when the plaintiff told her supervisor to stop harassing her, she engaged in the most “basic
form of protected conduct”)). The Eleventh Circuit has not weighed in on this issue.
However, the facts of this case are similar to those presented in Ogden. In this case, the
record reflects that Plaintiffs felt pressured to engage in sexual acts with Panjabi, they
attempted to reject his sexual advances, they knew that what Panjabi was doing was wrong,
and when they decided they were finished giving into his sexual demands and refused his
demands for oral sex, they were immediately terminated. Unlike the facts presented in
LeMaire, this was not a single, express rejection.
Notably, the Sixth Circuit recently addressed the circuit split and aptly reasoned:
[W]e conclude that a demand that a supervisor cease his/her harassing conduct
constitutes protected activity covered by Title VII. Sexual harassment is
without question an “unlawful employment practice.” If an employee
demands that his/her supervisor stop engaging in this unlawful practice—i.e.,
resists or confronts the supervisor’s unlawful harassment—the opposition
clause’s broad language confers protection to this conduct.
...
We note that only one of our sister circuits has concluded that communication
directed solely to a harassing supervisor does not constitute protected activity.
In Frank v. Harris County, 118 Fed.Appx. 799, 804 (5th Cir. 2004), the Fifth
Circuit held that the plaintiff “provide[d] no authority for the proposition that
a single ‘express rejection’ to [a harassing supervisor] constitutes as a matter
of law a protected activity.” In reaching this conclusion, the Fifth Circuit
2
LeMaire relied on the earlier unpublished case of Frank v. Harris County, 118
Fed.Appx. 799, 804 (5th Cir. 2004).
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neither assessed the language of the opposition clause of Title VII nor
indicated why a complaint to the harassing supervisor would not fall within the
confines of the provision. See generally id. Therefore, we are not persuaded
by Frank.
E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1067-68 (6th Cir. 2015).
The reasoning in New Breed Logistics is sound. It would be anomalous, and would
undermine the fundamental purpose of the statute, if Title VII’s protections from retaliation
were not triggered when an employee confronts a supervisor harasser and demands that the
harassment stop. “Such an outcome would render Title VII’s prohibition on retaliation
illusory for any employee who stands up to a harasser supervisor to bring a halt to a sexually
hostile work environment.” Ross v. Baldwin Cty. Bd. of Educ., No. CIV.A. 06-0275-WS-B,
2008 WL 820573, at *5-*6 (S.D. Ala. Mar. 24, 2008) (concluding that “plaintiff’s
unequivocal demand that her supervisor cease groping her in the workplace unquestionably
constituted protected conduct satisfying the first element of the prima facie test under Title
VII.”). Accordingly, Defendant’s motion is denied with respect to Plaintiffs’ retaliation
claims. A reasonable jury could find that Plaintiffs’ refusal to engage in further sexual acts
with Panjabi constituted protected activity. Defendant’s remaining arguments are without
merit.
It is therefore ORDERED AND ADJUDGED that:
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1.
Defendant Sunny-Aakash, LLC’s Dispositive Motion for Summary Judgment
(Dkt. 37) is GRANTED in part and DENIED in part as stated herein.
DONE and ORDERED in Tampa, Florida on September 20, 2017.
Copies furnished to:
Counsel/Parties of Record
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