Furcron v. Mail Centers Plus, LLC

Filing 87

ORDER adopting the ultimate conclusion of the 80 Report and Recommendation and GRANTS Defendant's 53 Motion for Summary Judgment. The Clerk is DIRECTED to close this action. Signed by Judge Richard W. Story on 9/30/2015. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MYRA FURCRON,

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Plaintiff,
v.
MAIL CENTERS PLUS, LLC,
Defendant.

CIVIL ACTION NO.
1:14-CV-1188-RWS-JSA

ORDER
This case is before the Court for consideration of the Report and
Recommendation [80] of Magistrate Judge Justin S. Anand, granting in part
and denying in part Defendant’s Motion to Exclude [74] and recommending
that Defendant’s Motion for Summary Judgment [53] be granted and judgment
be entered in favor of Defendant on all of Plaintiff’s claims. After carefully
considering the Report and Recommendation, the objections thereto, and the
Record, the Court enters the following Order, accepting in part and rejecting in
part the Report and Recommendation.

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Background
The Court adopts the Background and Statement of Facts as set forth in
the Report and Recommendation.
Discussion
The Court accepts in part and rejects in part the Report and
Recommendation on Plaintiff’s Title VII claims. Specifically, and as discussed
more fully below, the Court disagrees with the Report and Recommendation’s
conclusion that the harassment Plaintiff encountered was not sufficiently severe
or pervasive to alter the terms and conditions of employment. The Court
accepts, however, the conclusion of the Report and Recommendation that
Plaintiff did not create a genuine issue of material fact that any harassment was
based on sex (as a protected class under Title VII), and accordingly reaches the
same outcome: that Defendant is entitled to summary judgment.
I.

Plaintiff’s Title VII Sexual Harassment Claim
As stated in the Report and Recommendation, an employer is liable for a

violation of Title VII based on sexual harassment when the harassing conduct
“unreasonably interferes with an employee’s job performance by creating a
hostile, intimidating, or offensive work environment.” Meritor Savings Bank
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v. Vinson, 477 U.S. 57, 65 (1986). To establish a prima facie case for a hostile
work environment based on sexual harassment, a plaintiff must show that: (1)
she belongs to a protected group; (2) she was subjected to unwelcome
harassment; (3) the harassment was based on sex (or race or another protected
class under Title VII); (4) the harassment was sufficiently severe or pervasive
to alter the terms and conditions of employment; and (5) there is a basis for
holding the employer liable for the harassment either directly or indirectly. See
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002);
Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995).
The Report and Recommendation focused on the third and fourth prongs
of this analysis, concluding that Plaintiff did not create a genuine issue of
material fact as to either question. The Court assumes without deciding that
Plaintiff could either establish or show a genuine issue of material fact on the
other factors, and instead focuses its analysis only on the severity and the basis
of the harassment.
As set forth in the Report and Recommendation, to demonstrate the
fourth element of a prima facie case of a hostile work environment, a plaintiff
must show that her work environment was “permeated with discriminatory
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intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter
the conditions of his employment and create an abusive working environment.”
Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993). A court must consider the
“totality of the circumstances” in determining whether a hostile environment is
severe or pervasive enough to be actionable under Title VII; it must consider
not only the frequency of the incidents alleged but also the gravity of those
incidents. Id. at 23; Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503,
1511 (11th Cir. 1989). Other factors that are relevant are whether the offensive
conduct is physically intimidating or humiliating, and whether it unreasonably
interferes with Plaintiff’s work performance. Harris, 510 U.S. at 23.
As the Supreme Court has stated, “simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.” Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted). In
evaluating whether a reasonable person would find conduct to be sufficiently
severe or pervasive, “the objective severity of harassment should be judged
from the perspective of a reasonable person in the plaintiff’s position,
considering ‘all the circumstances.’” Oncale v. Sundowner Offshore Services,
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Inc., 523 U.S. 75, 81 (1998); see also Mendoza v. Borden, Inc., 195 F.3d 1238,
1246 (11th Cir. 1999) (en banc) (“court 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 plaintiff’s employment and create a hostile or
abusive working environment.”). Whether conduct could be objectively
perceived as severe or pervasive is an issue for the jury unless no reasonable
jury could find the conduct to be severe or pervasive.
The Court finds that the Report and Recommendation did not sufficiently
construe the facts in favor of Plaintiff, the non-moving party. When viewing
the totality of the circumstances in the light most favorable to Plaintiff, the
Court cannot conclude that no reasonable jury could find that Seligman’s
conduct was neither severe nor pervasive enough to alter the terms or
conditions of Plaintiff’s employment. Disputes about the frequency of
Seligman’s contact with Plaintiff, the fact that Plaintiff “never felt [Seligman’s
erection]” when he brushed or bumped up against her, or that Seligman never
said anything of a sexual nature to Plaintiff cannot compel a finding for
Defendant as a matter of law. The Court finds that Plaintiff has provided
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sufficient evidence to create a genuine issue of material fact as to this factor,
and therefore REJECTS that portion of the Report and Recommendation.
But the Report and Recommendation also found that Defendant was
entitled to summary judgment because no genuine issue of material fact
remained that any harassment was “based on sex.”
Because the Court accepts the Magistrate Judge’s conclusion that
Plaintiff has not made a showing that any harassment was “based on sex” or
membership in a protected class, the Court ADOPTS the ultimate conclusion
awarding summary judgment to Defendant. In order to implicate Title VII,
Plaintiff must show that her working conditions were discriminatorily altered
because of her gender. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)
(Scalia, J., concurring); Carr v. Allison Gas Turbine Div., General Motors
Corp., 32 F.3d 1007, 1009 (7th Cir. 1994). The evidence in the record shows
that Seligman’s “constant” erection did not relate to Plaintiff’s sex or gender.
Plaintiff has not offered any evidence to show that Seligman singled her out
because of her sex, and accordingly, her Title VII sexual harassment claim
must fail.
Based on the foregoing, summary judgment is GRANTED to Defendant
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on Plaintiff’s sexual harassment claim.
II.

Plaintiff’s Title VII Retaliation Claim
The Court receives the Report and Recommendation as to Plaintiff’s

Title VII retaliation claim with approval and adopts it as the Opinion and Order
of the Court. Accordingly, Defendant’s Motion for Summary Judgment as to
these claims is hereby GRANTED.
Conclusion
In light of the foregoing, Defendant’s Motion for Summary Judgment
[80] is GRANTED. The Clerk is DIRECTED to close this action.
SO ORDERED, this 30th day of September, 2015.

________________________________
RICHARD W. STORY
United States District Judge

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