Lowe v. Cardinal Health Inc.
Lowe v. Cardinal Health Inc.
Opinion of the Court
MEMORANDUM OPINION
Jasminda Lowe pursues this claim against Cardinal Health Inc. for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), and under Alabama law for invasion of privacy and negligent and/or wanton training, supervision, and/or retention. Doc. 1 at 1. Lowe contends that Cardinal Health discharged her because she rebuffed the alleged sexual advances of her supervisor, Ralph Ruggs, and that Ruggs had direct input into the majority of the disciplinary actions that led to her discharge. Id. at 7. Cardinal Health moves for summary judgment on all of Lowe’s claims, doc. 28, and the motion is fully briefed and ripe for review, docs. 28, 34, and 36. Based on a review of the evidence and the law, the court finds that genuine material factual disputes exist regarding whether the alleged sexual harassment resulted in a tangible job detriment and whether a causal link exists between Lowe’s protected activity and her discharge that precludes summary judgment on her sexual harassment and retaliation claims. However, summary judgment is due on Lowe’s invasion of privacy and negligent and/or wanton supervision, training, and/or retention claims because Ruggs’s alleged behavior does not entitle Lowe to recovery and because Lowe has not established that Cardinal Health failed to exercise due and proper diligence in response to Lowe’s reports of sexual harassment. For these reasons, Cardinal Health’s motion is due to be granted in part and denied in part.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “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.” “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the non-moving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); see also Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (all justifiable inferences must be drawn in the non-moving party’s favor). Any factual disputes will be resolved in the non-moving party’s favor when sufficient competent evidence supports that party’s version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party’s favor when that party’s version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).
II. FACTUAL ALLEGATIONS
The following facts reflect an assessment of the record in the light most favorable to Lowe. On May 23, 2011, Lowe began work at Cardinal Health as a warehouse associate. Doc. 1 at 3. In 2012, Ralph Ruggs became Lowe’s direct supervisor. Id.; doc. 28-1 at 9. As a warehouse associate, Lowe’s responsibilities included taking and collecting, or “pulling,” products from the shelves to organize customer orders. Id. at 8,18.
The disciplinary steps that ultimately culminated in Lowe’s discharge began on March 6, 2012, when Ruggs disciplined Lowe by placing her on Coach and Coun
On May 15, 2012, Ruggs called Lowe and another employee into his office to discuss productivity rates. Id. at 14. During this meeting, Ruggs informed Lowe that she was not meeting the newly implemented productivity standards for the month of May,
The following day, Lowe contacted Cardinal Health’s Advice and Counsel Center (“ACC”)
Cardinal Health launched an investigation that consisted of Lori LeDuc, a Human Resources employee, Raul Valdez, Manager of Warehouse Operations, and Everett Posey, Director of Operations, interviewing Lowe, Ruggs, Burwell, and several other employees on May 17, 2012. Doc. 28-1 at 17-18. In their respective interviews Ruggs and Burwell denied being involved in a romantic relationship, and Ruggs denied any inappropriate conduct towards Lowe or Burwell. Doc. 28-2 at 14, 27. The focus of Lowe’s interview turned inevitably to her allegations concerning the alleged relationship between Ruggs and Burwell, with Posey and LeDuc asking her to disclose any information that she had regarding the alleged relationship. Id. at 31. Lowe also submitted a written statement after the interview. Doc. 28-1 at 57. A week later, Lowe contacted Po-sey and relayed that Burnell had told her that Burwell and Ruggs engaged in sex at work and that Ruggs had shown Burwell his penis during a one-on-one performance conversation. Id. at 20-21.
Apparently, Lowe was not the first employee to report the alleged relationship between Ruggs and Burwell. Prior to Lowe, Doug Brown had informed Posey that Ruggs was engaged in a romantic relationship with Burwell. Doc. 28-2 at 11. Posey’s investigation failed to substantiate the allegations.
A week after the written warning, Ruggs informed Lowe that she had failed to meet the required productivity rate for the month of May, and issued her a Final Warning (Step Three) for having a low productivity rate.
The final infraction occurred a few weeks later, when, on July 3, 2012, Lowe approached Ruggs to inquire about an approved vacation request that was omitted from the display board listing approved requests for paid time off (“PTO”). Id. at 22. Lowe reminded Ruggs that Cardinal Health approved her PTO on May 15, 2012, either told or screamed at Ruggs to “do his job,” and began to cry. Id. Ruggs responded “yeah, all the crap you brought up ... I’ll do it for you, go away.” Id. Although Lowe denies that she yelled at Ruggs, id., James Stubblefield and Danny Marshall, coworkers who witnessed the incident, provided written statements at Ruggs’s request that stated, respectively,
After a review of Ruggs’s reports and the statements Ruggs obtained, Posey and Valdez determined that Lowe’s behavior violated Cardinal Health’s standards of conduct. Doc. 28-1 at 56. Because Lowe previously had received three corrective actions, Posey and Valdez determined the next disciplinary step to take was discharge. Cardinal Health discharged Lowe upon her return from PTO on July 16, 2012. Id.
III. ANALYSIS
Lowe raises Title VII claims for sexual harassment and retaliation and state law tort claims. The court will begin with the sexual harassment claim, followed by the retaliation claim, and finally the state law claims.
A. Sexual Harassment
Lowe contends that Ruggs sexually harassed her and took an adverse employment action against her after she rebuffed his sexual advances. Doc. 34 at 24-30. To establish a prima facie case of sexual harassment under Title VII a plaintiff must show that: Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1244 (11th Cir. 2004) (citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999); Johnson v. Booker T. Washington Broad. Serv., 234 F.3d 501, 508 n. 7 (11th Cir. 2000)). The Eleventh Circuit has referred to these elements as the “Mendoza factors.” See, e.g., Johnson, 234 F.3d at 508 n. 7. Cardinal Health contends that Lowe fails to meet her burden with regards to the fourth and fifth Mendoza factors. Doc. 28 at 11-19. Cardinal Health’s argument is ill-founded, because it is premised on an overly narrow characterization of Lowe’s sexual harassment claim, i.e. that Lowe is only pursuing a hostile work environment theory of liability.
(1) she belongs to a protected group; (2) she has been subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) 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 exists.
There are two instances in which sexual harassment amounts to a Title VII violation. The first is if the “employee’s refusal to submit to a supervisor’s sexual demands results in a tangible employment action being taken against her.” Hulsey, 367 F.3d at 1245. A tangi-. ble employment action is “ ‘a significant hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ ” Id. at 1245 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). “An employer is liable under Title VII if it (even unknowingly) permits a supervisor to take a tangible employment action against an employee because she refused to give in to his sexual overtures.” Id. Secondly, sexual harassment can constitute a Title VII violation “if it is sufficiently severe and pervasive to effectively result in a change ... in the terms and conditions of employment, even though the employee is not discharged, demoted, or reassigned.” Id. (citing Burlington Indus., 524 U.S. at 754, 118 S.Ct. 2257). Lowe’s complaint and response to Cardinal Health’s motion for summary
As to Lowe’s hostile work environment theory, in order to determine whether a working environment is “hostile” or “abusive,” and consequently whether a plaintiff has established the fourth Mendoza factor — at least in the context of a hostile work environment theory — courts consider various factors including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Construing the evidence in the light most favorable to Lowe, the court agrees with Cardinal Health that Ruggs’s alleged conduct is insufficiently severe or pervasive to support recovery on a hostile work environment theory. Lowe alleged that Ruggs stated on multiple occasions, “you look so sexy” and “you smell sex,” invited her to spend the night with him in a hotel room, and touched her shoulders on one occasion and said, “you-look so sexy.” Doc. 28-1 at 10, 15. With the exception of one time that Ruggs placed his hands on Lowe’s shoulders, Lowe does not contend that Ruggs touched her inappropriately and she presented no evidence showing that Ruggs’s conduct was “physically threatening or humiliating” or that the cumulative effect of this conduct “unreasonably interfered” with her job duties. See Harris, 510 U.S. 17, 23, 114 S.Ct. 367. While the alleged conduct was inappropriate and unwel-comed, it simply fails to reach the high threshold necessary in this circuit to meet the severe' and pervasive standard. By point of comparison, in Baldwin v. Blue Cross/Blue Shield of Ala., the court found that the following conduct was not sufficiently severe or pervasive: a supervisor propositioning an employee at a company banquet and on the drive home, asking her to spend the night in his hotel room, cornering her in his office and propositioning her by saying “hey, babe, blow me,” approaching her on more than one occasion and saying “hey, babe” while playing with his zipper,, and approaching her from behind two or three times and saying “hey, babe” while breathing down' her neck. 480 F.3d 1287, 1302 (11th Cir. 2007). Lowe’s allegations of a few remarks, one physical touch, and a single invitation to share a hotel room are even less severe and pervasive than the allegations in Baldwin.
Turning now to the specific contentions before the court, Cardinal Health argues that Lowe’s alleged harassment did not result in a tangible employment action because Ruggs was not Lowe’s supervisor since he did not have the authority to discharge her or participate in the decision to discharge her. Doc. 28 at 17. At a minimum, an issue of fact
employer does attempt to confíne decision[-]making power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. ... Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.
Vance v. Ball State Univ., — U.S. -, 133 S.Ct. 2434, 2452, 186 L.Ed.2d 565 (2013). When viewed under this framework, although Cardinal Health insists that Valdez and Posey alone decided to discharge Lowe, a jury question exists because the record indicates that they sought out Ruggs’s opinion and assistance. See docs. 28-2 at 10-11 (describing the formal process used to investigate an employee who curses at a supervisor, which includes gathering statements); 28-3 at 39, 41^42 (explaining that Ruggs notified Posey of the incident via email and gathered all of the witness statements in the formal investigation).
In addition to Ruggs’s involvement in the incident that triggered the discharge, Ruggs also played a role in the earlier disciplinary steps that culminated ultimately in the discharge. These earlier disciplinary incidents that advanced Lowe to the next level show that the so-called decisionmakers in the discharge had “a limited ability to exercise independent discretion ... [that they] likely reified] on other workers who interacted] with the affected employee ... [and may] have effectively delegated the power to take tangible employment action.... ” Vance, 133 S.Ct. at 2452. Ruggs’s involvement in Lowe’s discipline began on March 6, when Ruggs issued a Coach and Counsel notice to Lowe for “high error volume” and “continuous customer complaints.” Doc. 28-1 at 53. Lowe made her complaint against Ruggs on May 16. Doc. 28-1 at 14. On June 5, Lowe received a Written Warning from Posey for initially withholding information about the alleged inappropriate relationship between Burwell and Ruggs when Lowe reported Ruggs on May 16.
In the final analysis, the record contains sufficient evidence to indicate that an issue of material fact exists as to whether Ruggs took an adverse employment action against Lowe or influenced the decision in a manner that could render Cardinal Health liable to Lowe. Consequently, Cardinal Health’s motion on Lowe’s sexual harassment claim is due to be denied.
B. Retaliation
Lowe alleges that Cardinal Health discharged her in retaliation for reporting Ruggs’s sexual harassment. Doc. 34 at 14-18. When evaluating a claim of retaliation under Title VII, in the absence of direct evidence, courts apply the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this standard, the first step is for the plaintiff to establish a prima facie case, which in the retaliation context requires that “a plaintiff must demonstrate that (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) there was a causal link between the protected activity and the subsequently materially adverse employment action.” Brush v. Sears Holdings Corp., 466 Fed.Appx. 781, 786 (11th Cir. 2012) (citing Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1212 (11th Cir. 2008)). Cardinal Health challenges only the third prong, and contends that Lowe has failed to show that a causal link exists between her report of sexual harassment and her discharge. Doc. 28 at 22-23.
To satisfy the causation requirement, a plaintiff must produce evidence that the employer’s “desire to retaliate” against the protected activity was the “but-for cause” of the adverse employment action. Univ. of Tex. Sw. Med. Center v. Nassar, — U.S. -, 133 S.Ct. 2517, 2521, 186 L.Ed.2d 503 (2013). Additionally, the Supreme Court has held “if a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.... ” Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 1194, 179 L.Ed.2d 144 (2011). Also, “[t]he burden of causation can be met by showing close temporal proximity between the statutorily protected activity and the adverse action.” Adams v. City of Mont
Here, the interval between the protected activity and the beginning of adverse action is much shorter than the three-month lapse rejected as insufficient by the Eleventh Circuit. Lowe engaged in protected activity when she reported Ruggs’s harassment to Cardinal Health’s ACC hotline on May 16, 2012. Doc. 28-1 at 14. Just three weeks later, on June 6, 2012, she received a written warning for failing to fully disclose her knowledge about Ruggs’s relationship with Burwell during her initial interview with LeDuc and Posey. Id. at 54. Five days after that, Ruggs issued an additional warning to her for failing to meet production goals. Id. at 55. A month later, on July 16, 2012, after her confrontation with Ruggs, Cardinal Health discharged her. Id. at 56. In sum, beginning just three weeks after she engaged in protected activity, Lowe was subjected to three adverse employment actions over the course of two months: two warnings and, ultimately, discharge. The court finds that this temporal proximity is sufficient evidence of causation to satisfy Lowe’s burden of establishing a prima fa-cie case of retaliation.
Under the McDonnell Douglas framework, “the successful assertion of a prima facie case then creates a rebuttable presumption that the employer unlawfully discriminated against the plaintiff.” Rioux v. City of Atlanta, 520 F.3d 1269, 1275 (11th Cir. 2008) (citations omitted) (internal quotation marks omitted). The burden then shifts to the employer to produce evidence that it had a legitimate non-discriminatory reason for the challenged action. Id. Cardinal Health contends that Lowe’s consistently low productivity rates, failure to be forthcoming in an investigation, and confrontation with Ruggs were the causes of its progressive disciplinary actions against Lowe, as well as the causes for its ultimate decision to discharge her. Doc. 28 at 21-22. These reasons are sufficient to satisfy Cardinal Health’s burden. Consequently, the burden shifts back to Lowe to “show that the proffered reason really is a pretext for unlawful discrimination.” Rioux, 520 F.3d at 1275 (citations omitted) (internal quotation marks omitted). To demonstrate pretext Lowe must show “that the employer’s proffered reason [for her discharge] was false and that the true motive for the action was discriminatory.” Thomas v. CVS/Pharmacy, 336 Fed.Appx. 913, 914 (11th Cir. 2009) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). “To survive summary judgment, [Lowe] need only show that a genuine issue of material fact in dispute could lead a rational trier of fact to make a finding of pretext.” Id. (citing Chapman v. AI Transp., 229 F.3d 1012, 1024-25 (11th Cir. 2000)).
Based on a review of the record, there are at least two grounds for finding that the reasons articulated by .Cardinal
Second, the record contains evidence that Cardinal Health failed to discipline other employees who engaged in similar conduct as Lowe. “A typical means of establishing pretext is through comparator evidence.” Walker v. St. Joseph’s/Candler Health Sys., 506 Fed.Appx. 886 (11th Cir. 2013) (citing Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1563 n. 20 (11th Cir. 1987)). Specifically, Cardinal' Health issued a written warning to Lowe on June 6, 2012 (advancing her to Step Two), when Posey and LeDuc determined Lowe initially withheld information during their investigation of the allegations she made in her May 16 telephone call to Cardinal Health hotline because she subsequently provided additional information ábout the alleged Ruggs/Burwell relationship. Docs. 28-1 at 54; 28-2 at 17. However, when Brown, another warehouse associate, also provided additional information about the same relationship, he was not disciplined.
In sum, Lowe has presented evidence that could lead a reasonable jury to conclude, if it is so inclined, that Cardinal Health’s proffered reasons for her discharge were pretext for retaliation. As is often the case in the Title VII context, the resolution of Lowe’s retaliation claim— and, indeed, her sexual harassment claim, hinges' on whether the jury believes Lowe’s version of events or that of the alleged tortfeasor, Ruggs. Because credibility determinations are the proper province of a jury, see Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1315 (11th Cir. 2007), Cardinal Health’s motion
C. Invasion of Privacy
Lowe seems to contend that by asking- her to spend the night with him at a hotel and touching her shoulders while saying “you look sexy,” Ruggs committed the tort of invasion of privacy, for which Cardinal Health can be held vicariously liable. Doc. 1 at 10-11. Invasion of privacy is “the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.” McIsaac v. WZEW-FM Corp., 495 So.2d 649, 651 (Ala. 1986). However, Alabama courts have consistently required allegations of egregious conduct to sustain a claim. See id. at 652 (noting that “[e]ven the dire affront of inviting an unwilling woman to illicit intercourse has been held by most courts to be no such outrage as to lead to liability” for the tort of invasion of privacy) (citing Logan v. Sears, Roebuck & Co., 466 So.2d 121, 124 (Ala. 1985); W. Prosser, Law of Torts, 54-55 (4th ed. 1971)). Specifically, Alabama courts have generally required invasion of privacy claims to allege both ongoing, persistent verbal harassment and unwanted physical contact.
In light of these stringent requirements, and in the absence of any legal support for Lowe’s contention, the court concludes that no reasonable jury could find Ruggs liable for the tort of invasion of privacy based solely on one inquiry to share a hotel room, a single incident of physical contact and comments such as “you look sexy” and “you smell sex.” Doc. 28-1 at 9-10. Consequently, Cardinal Health’s motion on the invasion of privacy claim is due to be granted. See Alfa Life Ins. Corp. v. Jackson, 906 So.2d 148, 155 (Ala. 2005) (stating that “the dismissal of the tort claims against the agent ... exonerated the principal ... from liability for those alleged torts”).
D. NegligentfWanton Training, Supervision, and/or Retention
Finally, Lowe asserts that because Ruggs sexually harassed her and she experienced an adverse employment action after she reported the harassment, Cardinal Health was negligent and/or wanton in its training, supervision, and/or retention of Ruggs. Doc. 34 at 30. To
“(1) had actual knowledge14 of the tortious conduct of the offending employee and that the tortious conduct was directed at and visited upon the complaining employee; (2) that based upon this knowledge, the employer knew, or should have known, that such conduct constituted sexual harassment and/or a continuing tort; and (3) that the employer failed to take ‘adequate’ steps to remedy the situation.”
Stevenson v. Precision Standard, Inc., 762 So.2d 820, 824 (Ala. 1999) (quoting Potts v. BE & K Constr. Co., 604 So.2d 398, 400 (Ala. 1992)). Lowe has not presented any evidence that Cardinal Health could have known about the alleged sexual harassment prior to her report on May 16, 2012. Nonetheless, Lowe seems to argue that Cardinal Health is liable because it did not take adequate steps to investigate her report and failed to discipline Ruggs. The court disagrees because although Lowe received a copy of Cardinal Health’s anti-harassment policy, she failed to report the sexual harassment at the time it occurred. Doc. 28-1 at 30. Moreover, when Lowe reported Ruggs on May 16, 2012, Cardinal Health promptly investigated the allegations — including obtaining written statements and conducting interviews. Docs. 28-1 at 31, 60-61; 28-2 at 31, 57. Ultimately, Cardinal Health was unable to substantiate Lowe’s allegations, doc. 28-2 at 44, and, perhaps as a result, chose not to discipline Ruggs. The failure to discipline Ruggs, however, does not mean that Cardinal Health “did nothing about [the alleged harassment].” Baldwin, 480 F.3d at 1309; see also Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1288 (11th Cir. 2003) (citing EEOC Notice No. 915.002) (stating that, in the Title VII context “remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur”); Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 654 (10th Cir. 2013) (“[Corrective action does not always require discipline” of the harasser.); cf. Mills v. Wex-Tex Indus., 991 F.Supp. 1370, 1390-91 (M.D.Ala. 1997) (denying the defendant’s motion for summary judgment on the plaintiffs Alabama negligent/wanton retention claim because “[t]he facts established] that even after [the defendant] took some remedial measures, the harassing conduct continued”). The key inquiry, under these circumstances, is whether the alleged sexual harassment continued after Lowe’s complaint and, from the record here, it did not. Consequently, Cardinal Health’s motion for summary judgment on Lowe’s negligent and/or wanton supervision, training and/or retention claim is due to be granted.
IV. CONCLUSION
For the reasons fully explained above, Cardinal Health’s motion for summary judgment is due to be denied on the Title VII sexual harassment and retaliation
. Cardinal Health also argues that the court should dismiss Lowe's complaint, because Lowe failed to amend the defendant’s name from "Cardinal Health, Inc.” to "Cardinal Health 200, LLC” after notification that she improperly named the defendant. Doc. 28 at 27. This issue is moot in light of Lowe's unopposed motion to correct misnomer of defendant, doc. 48.
Separately, Lowe also moves for sanctions against Cardinal Health for its alleged spoliation of evidence. Doc. 37 at 5-6. Spoliation
. Lowe signed the Quality and Productivity Requirements for Inbound/Outbound Hourly Associates on March 15, 2012. Doc. 28-1 at 50. The requirements stated that employees “must not exceed two errors for items flagged hard to pick/pack," "errors resulting in a high inventory loss will be evaluated on a case by case basis and may be subject to corrective action," and employees should achieve an eighty-five percent monthly productivity rate. Id. at 51. Cardinal Health enacted this policy in 2012, and only expected associates to achieve a seventy-five percent productivity rate for the months of April and May. Doc. 28-3 at 23.
. The ACC is an ethics hotline that employees can use to report concerns about a violation of the ethics policy. Doc. 28-1 at 14, 48.
. This investigation was in response to Brown and other employees’ concern that Ruggs was showing favoritism toward Burwell regarding workplace benefits. Docs. 28-2 at 15; 47-14 ^SEALED* at 3.
. Brown alleged that Burwell and Ruggs shared lunch in Ruggs's office, that Ruggs drove Burwell home from work, and that he overheard Burwell making explicit remarks in a telephone conversation, and that she may have been talking to Ruggs. Doc. 47-10 *SEALED* at 2.
.Lowe remained under Ruggs’s supervision throughout the process. After she reported Ruggs, Lowe testified that LeDuc asked her if she was "scared ... [to] work with [Ruggs].” Doc. 28-1 at 20.' According to Lowe, LeDuc offered to place Lowe on a different shift, but never followed through on the offer. Id.
. This circuit’s case law explicitly establishes that a plaintiff may pursue a sexual harassment claim based .on both a hostile work environment and a tangible employment action theory of recovery, even if both theories are premised on the same underlying harassment. See Hulsey, 367 F.3d at 1246.
. For an additional point of comparison, see Mendoza, in which the court held the following conduct insufficiently severe and pervasive to sustain a Title VII claim: “(1) one instance in which [a supervisor] said to plaintiff, ‘I’m getting fired up’; (2) one occasion in which [supervisor] rubbed his hip against [plaintiff's] hip while touching her shoulder and smiling; (3) two instances in which [supervisor] made a sniffing sound while looking at [the plaintiff’s] groin area ...” 195 F.3d 1238 (11th Cir. 1999).
. Hulsey, 367 F.3d at 1245-49, in which the plaintiff contended that the defendant was liable to her based on both theories, provides a good illustration of the difference between the application of the fourth Mendoza factor to a tangible employment action theory and its application to a hostile work environment theory. Only when analyzing liability on the hostile work environment theory did the court consider whether the wrongdoer’s actions were of a frequency, degree, and nature that would qualify as ‘severe and pervasive.' Id. Additionally, the Eleventh Circuit has described the difference between the two theories of liability as follows: "To prove sexual harassment in violation of Title VII, a plaintiff may rely on one of two theories. Under the first theory, the plaintiff must prove that the harassment culminated in a 'tangible employment action’ against her. Under the second or 'hostile work environment' theory, the plaintiff must prove that she suffered ‘severe or pervasive conduct.' " Cotton v. Cracker Barrel Old Country Store, 434 F.3d 1227, 1231 (11th Cir. 2006).
. Interestingly, although another employee also reported that Ruggs had a sexual relationship with Burwell, there is no indication from the record that Cardinal Health disciplined Ruggs. Rather, the only person disciplined was Lowe for purportedly withholding information about the alleged Ruggs/Burwell relationship.
. Although Cardinal Health proffers a legitimate, nondiscriminatory reason for Lowe’s termination, namely that she violated Cardinal’s Standards of Conduct, and the record contains evidence supporting Cardinal Health's contention, in this circuit, the McDonnell Douglas-Burdine burden-shifting framework is not applicable to sexual harassment claims: "We are unwilling to read the McDonnell Douglas-Burdine framework into non-retaliation sexual harassment cases at this point. These types of cases have evolved quite separately from other Title VII cases, and applying a burden-shifting analysis to them would be a departure from precedent." Johnson, 234 F.3d at 511 (citing Henson v. City of Dundee, 682 F.2d 897, 905 n. 11 (11th Cir. 1982)).
. Brown also provided information regarding the alleged relationship between Ruggs and Burwell to Posey in 2012. Doc. 47-12 *SEALED* at 3. Brown followed up after his additional interview and provided additional information about the relationship. Id. In his May 17, 2012 statement, Brown states "[a]t one time, in a conversation with Everett Po-sey, I expressed concerns that something along the Burwell/Ruggs situation might be happening without directly stating that it was going on.” Id. Cardinal Health did not discipline Brown for providing additional information. Doc. 47-13 *SEALED*.
. See, e.g., Ex parte Atmore Cmty. Hosp., 719 So.2d 1190, 1194 (Ala. 1998) (substantial evidence supported lower court's finding that defendant committed invasion of privacy when the plaintiff presented evidence that the defendant repeatedly touched her in a manner that was unwelcome and with sexual overtones, "made several lewd comments[,] asked [the plaintiff] to meet him outside of work for other than business purposes[,] ... [and] looked up [the plaintiff's] skirt on more than one occasion"); Phillips v. Smalley Maint. Servs., Inc., 435 So.2d 705, 711 (Ala. 1983) (finding that the facts of the case supported an invasion of privacy claim when the plaintiff testified that the defendant called her into his office, locked the door, and interrogated her about her sexual relationship with her husband, repeatedly demanded sexual favors from her, reacted violently when she refused, “[o]n one occasion struck her across the buttocks with his hand[, and o]n still another occasion, ... began papering his office window, thus obscuring the view of those in the surrounding area, in pursuit of what he hoped would be the consummation of lurid propositions to [the p]laintiff”); Cunningham v. Dabbs, 703 So.2d 979, 980-81, 982 (Ala.Civ.App. 1997) (finding that a reasonable jury could conclude the defendant intruded on the plaintiff's privacy when the uncontested evidence showed that the defendant "frequently rubbed [the plaintiff's] shoulders and repeatedly made lewd and suggestive comments to her, including suggestions that they have sex” and on one occasion “leaned over her as if he were going to whisper something to her and stuck his tongue in her ear”).
. Courts have been inconsistent with their scienter requirements for these causes of action. See e.g., Baldwin, 480 F.3d at 1309 (citing Stevenson v. Precision Standard, Inc., 762 So.2d 820, 824 (Ala. 1999); Thompson v. Havard, 285 Ala. 718, 235 So.2d 853, 858 (1970)) (“As to [the plaintiff’s] negligence claims, she must show that Blue Cross had actual knowledge of Head’s harassment and did nothing about it (for negligent retention) or would have known about the harassment had it exercised due and proper diligence (for negligent training and supervision.”)). A thorough discussion of the matter is unnecessary here because the disposition of Lowe’s negligent/wanton training, supervision and/or retention claims hinges on whether Cardinal Health took adequate steps to remedy the situation.
Reference
- Full Case Name
- Jasminda LOWE v. CARDINAL HEALTH INC.
- Status
- Published