LISCAR et al v. PEDIATRIC ACUTE CARE OF COLUMBUS PC et al
Filing
132
ORDER granting in part and denying in part 76 Motion for Summary Judgment; granting in part and denying in part 77 Motion for Summary Judgment; granting in part and denying in part 78 Motion for Summary JudgmentOrdered by U.S. District Judge CLAY D LAND on 04/09/14 (bsh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
DIANE LISCAR and ERIC LISCAR,
*
Plaintiffs,
*
vs.
*
CASE NO. 4:12-cv-08 (CDL)
PEDIATRIC ACUTE CARE OF
*
COLUMBUS, P.C., BEN OVERBY, KIM
OVERBY, SOUTHEASTERN CARDIOLOGY *
ASSOCIATES, P.C., and SBD
MEDICAL SOLUTIONS, INC.,
*
Defendants.
*
O R D E R
Diane
Pediatric
harassed
Liscar
Acute
her.
claims
Care
Mrs.
that
of
Ben
Overby,
Columbus,
Liscar
her
supervisor
P.C.
alleges
(“PACC”),
that
she
was
against when she complained about the harassment.
at
sexually
retaliated
She, along
with her husband Eric Liscar, filed suit in the Superior Court
of Muscogee County.
Mrs. Liscar asserts retaliation claims
against her employer under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq.
husband
also
assert
intentional
supervision
provide
state
infliction
and
safe
law
of
retention,
workplace,
claims
under
emotional
assault
invasion
defamation, and loss of consortium.
and
of
She and her
Georgia
distress,
battery,
privacy,
law
for
negligent
failure
slander
to
and
Defendants removed the case
to
federal
court.
subsequently
resulting
filed
in
Defendants
an
PACC,
(“Southeastern”),
collectively
Defendants
a
suggestion
automatic
stay
Southeastern
and
referred
SBD
to
Ben
and
of
bankruptcy
of
the
claims
Cardiology
Medical
as
Overby
(ECF
Overby
No.
53),
against
them.
Associates,
P.C.
Solutions,
“Defendants,”
Kim
Inc.
filed
(“SBD”),
motions
for
summary judgment on all of Plaintiffs’ claims (ECF Nos. 76, 77,
78).
For the reasons explained below, Defendants’ motions are
denied
as
to
Plaintiff’s
Title
VII
retaliation
claims
and
Plaintiffs’ state law negligent supervision and retention claim.
Defendants’ motions are otherwise granted.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
In determining whether a
genuine
Fed. R.
dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
2
Id.
FACTUAL BACKGROUND
PACC is a pediatric after-hours clinic started by Dr. Shane
Darrah
in
the
fall
of
2009.
Southeastern
cardiology clinic where he practices.
is
Dr.
Darrah’s
SBD is a medical billing
company Dr. Darrah established to perform billing services for
PACC and Southeastern.
Mrs. Liscar was hired as PACC’s practice
manager on October 25, 2009.
Mrs. Liscar alleges that she was
sexually harassed and assaulted during her employment by her
direct supervisor, Mr. Overby.
Mr. Overby was the director of
operations of PACC and the practice manager of SBD.
On February 4, 2011, Mrs. Liscar complained to Dr. Darrah,
Mr. Overby’s supervisor, that she had been sexually harassed and
sexually assaulted by Mr. Overby and that he retaliated against
her when she opposed his conduct.
The only incident she told
Dr. Darrah about at that time was a kiss.
The last alleged
physical
earlier.
contact
had
occurred
eight
months
After
learning that Mrs. Liscar and her husband, Eric, did not wish to
pursue criminal charges, Dr. Darrah called Mr. Overby to his
office
to
discuss
the
relationship
with
Mrs.
consensual.
Dr.
Darrah
situation.
Liscar,
but
requested
Mr.
he
that
Overby
claimed
both
admitted
that
parties
evidence regarding the nature of the relationship.
it
a
was
provide
He asked the
Liscars for proof of the alleged harassment and asked Mr. Overby
for proof that the relationship was consensual.
3
Mrs. Liscar
offered
no
documents
to
support
her
claims.
Mr.
Overby
submitted emails, Facebook messages, and photographs tending to
show the good natured aspects of the relationship between the
Liscars
and
the
harassment.
As
Overbys
a
during
result
of
the
his
time
of
the
investigation,
alleged
Dr.
Darrah
concluded that Mr. Overby should no longer be Mrs. Liscar’s
supervisor.
But Mr. Overby remained involved in the operations
of PACC and had contact with Mrs. Liscar, sending her emails she
viewed as critical and retaliatory and attending meetings where
her presence was required.
By
April
1,
operations at PACC.
2011,
Mr.
Overby
was
removed
from
all
Mrs. Liscar resigned from her employment
with PACC on July 28, 2011, after a two-week notice period.
Mr.
Overby continued to work for SBD and Southeastern until he was
terminated in the spring of 2013.
DISCUSSION
I.
Title VII Retaliation Claims
It is unlawful for an employer to discriminate against an
employee
“because
[she]
has
opposed
any
practice
made
an
unlawful employment practice” by Title VII or “because [she] has
made a charge” under Title VII.
42 U.S.C. § 2000e-3(a).
“A
prima facie case of retaliation under Title VII requires the
plaintiff to show that: (1) she engaged in an activity protected
under Title VII; (2) she suffered an adverse employment action;
4
and (3) there was a causal connection between the protected
activity
and
the
adverse
employment
action.”
Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
Crawford
v.
If the plaintiff
establishes a prima facie case based on circumstantial evidence,
the burden then shifts to the employer to articulate a nonretaliatory reason for its actions.
See Brown v. Ala. Dep’t of
Transp., 597 F.3d 1160, 1181 (11th Cir. 2010); accord Ramirez v.
Bausch & Lomb, Inc., 546 F. App’x 829, 829 (11th Cir. 2013) (per
curiam).
reason
Plaintiff must then demonstrate that each proffered
is
judgment.
pretext
for
unlawful
retaliation
to
avoid
summary
Brown, 597 F.3d at 1181-82.
The Court finds that Mrs. Liscar established a prima facie
case of retaliation.
about
sexual
sufficiently
She presented evidence that she complained
harassment,
material
and
adverse
that
after
employment
those
actions
complaints
were
taken
against her.
Those actions included her superiors taking away
a
opportunity,
promotion
undermining
her
authority
with
employees she supervised, and increasing her work hours, among
others.
A reasonable jury might find that Defendants’ actions,
taken together, “could well dissuade a reasonable worker from
making or supporting a charge of [harassment or retaliation].”
Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57
(2006).
The
Court
further
finds
that
an
adequate
causal
connection has been shown for purposes of a prima facie case.
5
The Court also finds that a genuine factual dispute exists as to
whether
Defendants’
actions
were
stated
pretextual.
non-retaliatory
In
light
of
the
reasons
genuine
for
its
factual
disputes, summary judgment is not appropriate on the Title VII
claims.
The Court observes that the parties did not focus on the
proper causation standard in their briefing on the motions for
summary judgment.
Notwithstanding the suggestion in the case
law that a relaxed causation standard exists for purposes of a
prima facie case, it is now clear that a plaintiff ultimately
must prove “that the desire to retaliate was the but-for cause”
of the alleged retaliation.
Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 131 S. Ct. 2517, 2528 (2013).
The employee must present
sufficient evidence from which a reasonable jury could conclude
“that the unlawful retaliation would not have occurred in the
absence
of
employer.”
the
alleged
Id. at 2533.
wrongful
action
or
actions
of
the
To avoid summary judgment, Mrs. Liscar
must produce evidence from which the jury could determine that
her
employer
would
not
have
taken
the
alleged
retaliatory
actions against her if she had not complained about harassment.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009);
accord Nassar,
131 S. Ct. at 2528
(“[T]he proper conclusion
here, as in Gross, is that Title VII retaliation claims require
proof that the desire to retaliate was the but-for cause of the
6
challenged employment action.”).
Based on the present record
and construing all reasonable inferences in Mrs. Liscar’s favor
as required at this stage of the litigation, the Court finds
that a genuine factual dispute exists on causation.
Defendants’ motions for summary judgment are denied as to
Plaintiff Diane Liscar’s Title VII retaliation claims.1
II.
State Law Claims
In addition to Mrs. Liscar’s Title VII claims, Mrs. Liscar
asserts
state
law
claims
against
Overby’s alleged tortious conduct.2
Defendants
based
on
Mr.
Mrs. Liscar maintains that
Defendants as Mr. Overby’s employer were aware of his conduct
and allowed it to persist, thus subjecting them to liability for
negligent supervision and retention of Mr. Overby.
Mrs. Liscar
also maintains that Defendants ratified his tortious conduct and
are therefore liable for it.
The Court does find that a genuine
factual dispute exists as to Mrs. Liscar’s negligent supervision
and retention claim, so summary judgment is not appropriate as
to that claim.
tortious
conduct
The Court finds, however, that Mr. Overby’s
was
not
in
furtherance
1
of
his
employer’s
It appears clear that PACC was Mrs. Liscar’s employer and thus is the
proper defendant for the Title VII claims.
It is less clear that
Southeastern and SBD were also her employers for purposes of Title VII
liability. But the present record is not sufficiently clear to permit
the Court to find as a matter of law that Southeastern and SBD were
not joint employers for purposes of Title VII.
Therefore, all of
Defendants’ motions for summary judgment are denied as to Mrs.
Liscar’s Title VII retaliation claims.
2
Mr. Liscar asserts a loss of consortium claim, which is a derivative
claim that depends on Mrs. Liscar’s state law claims.
7
business, and therefore, Defendants cannot be liable for the
alleged ratification of that conduct.
Liscar does
not
The Court notes that Mrs.
appear to assert claims based
on respondeat
superior principles, which claims would clearly fail because Mr.
Overby’s tortious conduct was not done in furtherance of his
employment.
A.
Negligent Supervision and Retention
Georgia law requires employers “not to retain [employees]
after knowledge of incompetency.”
Liscar
claims
that
O.C.G.A. § 34-7-20.
“Defendants,
jointly
and
Mrs.
severally,
negligently supervised and retained [Mr.] Overby . . . after
having actual and/or constructive knowledge of [his] propensity
to engage in sexual misconduct and retaliation toward female
subordinates.”
3d Am. Compl. ¶ 45, ECF No. 27.
Liability for
negligent retention claims in Georgia “requires evidence that
the
employer
knew
or
should
have
known
of
the
employee’s
propensity to engage in the type of conduct that caused the
plaintiff’s injury.”
Middlebrooks v. Hillcrest Foods, Inc., 256
F.3d 1241, 1247 (11th Cir. 2001).
Mrs. Liscar notified her
employer
Mr.
on
February
4,
2011,
that
Overby
had
sexually
harassed her and retaliated against her when she opposed his
harassment.
Overby
for
Dr. Darrah responded to the complaint by asking Mr.
his
side
of
the
provide proof of its claims.
story,
and
asking
each
side
to
As a response to the situation,
8
Dr. Darrah purported to remove Mr. Overby from his position as
Mrs. Liscar’s direct supervisor.
But Mrs. Liscar pointed to
evidence that Mr. Overby remained in contact with Mrs. Liscar at
work and continued to retaliate against her.
The present record
demonstrates a genuine factual dispute as to whether Defendants
negligently
supervised
and
retained
Mr.
Overby
after
Mrs.
Liscar’s complaints.3
B.
Failure to Provide Safe Workplace
Plaintiffs allege that Defendants “failed and refused to
provide [Mrs.] Liscar with a safe workplace, in violation of
O.C.G.A.
provision
§
34-2-10.”
requires
3d
that
Am.
Compl.
employers
¶
53.
“furnish
This
statutory
employment
which
shall be reasonably safe for the employees therein” and “adopt
and use methods and processes reasonably adequate to render such
an employment and place of employment safe.”
10(a).
“The
duty
imposed
upon
an
employer
O.C.G.A. § 34-2to
provide
its
employees with a safe working environment contemplates safety in
the physical sense; that is, that the workplace be organized and
maintained in such a manner as to minimize the likelihood of
physical injury.”
Metro. Atlanta Rapid Transit Auth. v. Mosley,
280 Ga. App. 486, 488, 492, 634 S.E.2d 466, 468, 471 (2006)
(finding
conduct
not
physically
33
threatening
when
defendant
The Court further finds that a genuine factual dispute exists as to
Plaintiffs’ lost consortium claims arising from Defendants’ negligent
supervision and retention of Mr. Overby, and therefore, summary
judgment is denied as to that claim.
9
pressed
himself
against
plaintiff
and
moaned).
Mrs.
Liscar
asserts that she has suffered personal and physical injury, but
the physical injuries she describes are a result of the alleged
emotional trauma.
the
facts
The Court declines to extend the statute to
presented
here
without
a
clearer
indication
of
legislative intent that the statute was intended to cover such
situations.
this
Plaintiffs have pointed to no case law applying
statute
this
broadly.
Accordingly,
the
Court
grants
Defendants’ motions for summary judgment as to this claim.
C.
Mrs.
Mrs. Liscar’s Remaining State Law Claims
Liscar’s
Defendants’
conduct.
remaining
alleged
“An
state
ratification
employer
may
law
of
ratify
claims
Mr.
are
based
Overby’s
tortious
conduct
on
tortious
by
an
employee, and thereby assume liability for unauthorized conduct,
but for liability to be imposed on the employer by ratification,
there must be evidence that the employee’s conduct was done in
furtherance of the employer’s business and within the scope of
the employment.”
Travis Pruitt & Assocs., P.C. v. Hooper, 277
Ga. App. 1, 3-4, 625 S.E.2d 445, 449 (2005).
Plaintiffs admit
that Mr. Overby’s alleged misconduct was not in furtherance of
the Defendants’ business or within the scope of Mr. Overby’s
employment.
No.
104.
Overby’s
Pls.’ Resp. to Statement of Material Facts 33, ECF
Accordingly,
tortious
Defendants
conduct
under
10
a
cannot
be
liable
ratification
for
Mr.
theory,
and
Defendants’
motions
for
summary
judgment
are
granted
as
to
favorable
to
Plaintiffs’ remaining state law claims.4
CONCLUSION
The
facts
Plaintiffs
Title
create
VII
retention
when
viewed
genuine
retaliation
claim,
and
in
the
factual
claims,
loss
of
light
disputes
negligent
consortium
most
as
to
Plaintiffs’
supervision
claims.
and
Summary
judgment is appropriate as to the remaining state law claims.
Defendants’ Motions for Summary Judgment (ECF Nos. 76, 77, 78)
are thus granted in part and denied in part.
In light of today’s rulings, the following claims remain
pending in this action:
negligent
Acute
supervision
Care
of
Plaintiff Diane Liscar’s Title VII and
and
retention
Columbus,
P.C.,
claims
against
Southeastern
Pediatric
Cardiology
Associates, P.C., and SBD Medical Solutions, Inc.; Plaintiffs’
loss of consortium claims against these Defendants arising from
Diane Liscar’s negligent supervision and retention claim; and
4
To the extent that Mrs. Liscar asserts a separate claim for
intentional infliction of emotional distress based on the employer
defendants’ separate conduct toward Mrs. Liscar, the Court finds that
she has failed to point to sufficient evidence from which a reasonable
jury could conclude that the essential elements of such a claim have
been established.
See Lightning v. Roadway Express, Inc., 60 F.3d
1551, 1558 (11th Cir. 1995) (explaining Defendants’ conduct must be
extreme and outrageous, causing severe emotional distress); see also
Higdon v. Jackson, 393 F.3d 1211, 1222 (11th Cir. 2004); Beck v.
Interstate Brands Corp., 953 F.2d 1275, 1276 (11th Cir. 1992) (per
curiam); Abdul-Malik v. Airtran Airways, Inc., 297 Ga. App. 852, 856,
678 S.E.2d 555, 559 (2009); Jarrard v. United Parcel Serv., Inc., 242
Ga. App. 58, 59-60, 529 S.E.2d 144, 146-47 (2000).
11
all of Plaintiffs’ claims against the Overby Defendants, which
are unaffected by this Order and are presently stayed because of
their bankruptcy filing.
IT IS SO ORDERED, this 9th day of April, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
12
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