Back v. Virginia

RHONDA BACK, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.

Civil Action No. 7:17-cv-00477

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

November 27, 2019

By: Elizabeth K. Dillon United States District Judge

MEMORANDUM OPINION

Plaintiff Rhonda Back brings this action against her former employer, the Commonwealth of Virginia, and James Granger, her former supervisor. She asserts a claim of sexual harassment and hostile work environment under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., against the Commonwealth, and a claim of assault and battery against the Commonwealth and Granger. (Am. Compl., Dkt. No. 29.) Pending before the court is defendants' motion for summary judgment, seeking judgment as a matter of law on both claims. (Dkt. No. 68.) The motion has been fully briefed and argued. For the reasons set forth below, the court will grant defendants' motion as to Back's Title VII claim and deny the motion as to her state-law claims.

I. BACKGROUND

This action arises out of Rhonda Back's employment with the Virginia Department of Veterans Services (DVS).¹ Back started with DVS on November 25, 2013, as a VeteransServices Representative in DVS's Salem, Virginia office. She received approximately six weeks of initial training at DVS's Roanoke office before transferring to Salem. (Cates Decl. ¶ 3, Dkt. No. 69-3; Back Dep. 88-89, Dkt. No. 69-4; Granger Dep. 185, Dkt. No. 69-2; Dkt. No. 69-3, Ex. A.) In July 2015, she accepted a promotion to the position of Western Outreach Coordinator in the Wytheville, Virginia office. (Cates Decl. ¶ 4; Back Dep. 90.) James Granger worked for DVS as the Deputy Director of Benefits and as Chief of the DVS Center of Excellence, located in Roanoke. (Granger Dep. 38.) Granger was Back's supervisor until Back transferred to Wytheville, at which point Brandy Disbennett-Albrecht became Back's supervisor. (Disbennett-Albrecht Decl. ¶ 2, Dkt. No. 69-14.)

Except for the first six weeks of Back's employment with DVS, she worked in a different office than Granger. (Granger Dep. 185.) When she moved to the Salem office, she no longer saw Granger daily, but nonetheless continued to see him with moderate frequency because she had to drop off work at the Roanoke office and would see him at trainings and other events. Although she acknowledged that it could have taken just a few minutes to drop off her files, Back nonetheless visited with other DVS employees and often ran into Granger in the process. (Back Dep. 140-43.)

Once Back moved to Wytheville, she would see Granger only when she made occasional trips to Roanoke and during trainings. (See Back Dep. 107-08, 158-59 (testifying that she would see Granger when she traveled to Roanoke "[a]t least once a week," when Granger traveled to Wytheville, and during trainings); Burch Decl. ¶ 5, Dkt. No. 69-5 ("[Back] visited [Roanoke] about twice a month . . . . After Ms. Back moved to Wytheville, she would come to[Roanoke] maybe four times a year . . . ."); Dickerson Decl. ¶ 6, Dkt. No. 69-16 ("Ms. Back would come to [Roanoke] once a month while she worked in Salem."); Granger Dep. 193 ("I would see her maybe three, four times a year max . . . . As far as one on one, I saw her once a year.").)

A. Granger's History of Physical Engagement with DVS Employees

Granger has a history of physical contact with DVS employees, including hugging and kissing both his fellow supervisors and subordinates. (See, e.g., Disbennett-Albrecht Dep. 48-50, Dkt. No. 70-7 (listing people who Granger hugged and reporting that she saw Granger kiss Jenny White); Sessoms Dep. 20, Dkt. No. 70-10 ("He went around the table and hugged and kissed each female there . . . ."); Wade Dep. 11-15, Dkt. No. 70-11 (naming numerous women Granger hugged and/or kissed); Zirkle Dep. 8-10, Dkt. No. 70-14 (noting that she saw Granger hug and kiss female employees on the forehead, head, and cheek, and saw Granger kiss Candi Wade on the lips).) In fact, when asked about Granger's behavior, some DVS employees commented on Granger's reputation as a "hugger." (See Cates Dep. 28-29, Dkt. No. 70-5 (recognizing "that was Jim's nature" and that DVS employees make comments like "that is just Jim" when discussing Granger's hugging); Wilson-Carter Dep. 22, Dkt. No. 70-4 ("[E]verybody said, that is his thing, he was a hugger . . . .").)

In his deposition, Granger explained that he believed that a "kiss or [sic] the forehead, a kiss on the cheek, is one thing," but that a "kiss on the lips is strictly off bounds." He also stated that he has kissed two DVS employees on the lips, though he considered those kisses to be "simply a greeting" and "not a sexual act at all." (Granger Dep. 108, 139.) Granger huggedboth male and female DVS employees, but he refused to kiss male employees. (Granger Dep. 106.)

Although some DVS employees described Granger's actions as "fatherly," or "harmless" greetings (see, e.g., Burch Decl. ¶ 3 ("I received hugs from Mr. Granger, and I would describe it like hugging a family member . . . . [The hugs] were fatherly and harmless . . . ."); Cates Decl. ¶ 15 ("I received hugs from Jim Granger as a greeting. I did not feel harassed by these hugs."); Ratcliffe Decl. ¶ 3, Dkt. No. 69-9 ("I . . . received hugs from [Granger] on numerous occasions. Jim and his hugs reminded me of 'a paw paw,' or grandfather. I did not have a problem with the hugs, and in fact liked them."); see also Smither Decl. ¶ 4, Dkt. No. 69-6; White Decl. ¶ 5, Dkt. No. 69-7; Williams Decl. ¶ 6, Dkt. No. 69-8), others felt his interactions and comments were inappropriate or made them uncomfortable (see, e.g., Cecil Dep. 13, Dkt. No. 70-6 (reporting that Cecil and Vaughn discussed how Granger's hugging "was kind of uncomfortable"); Disbennett-Albrecht Dep. 66 (indicating it made her "angry" when Granger asked to "go back to her hotel"); Vaughn Dep. 148-51, Dkt. No. 70-1 (describing how Vaughn became upset in response to Granger's kissing); Wilson-Carter Dep. 21-22 ("[H]e did hug me, and . . . I didn't think anything of it, but I thought that it was kind of too much, you know."); Zirkle Dep. 35 ("[I]t took me off guard when I first came aboard, him hugging . . . . [T]hat is just something that I never experienced, and it made me very uncomfortable . . . .").)

Significantly, DVS's management knew about Granger's tendency to interact physically with his coworkers and subordinates. Specifically, Tom Herthel, Director of DVS, and Lisa Cates, Human Resources Director for DVS, had each witnessed Granger's hugging and kissingpreviously. (See Back Dep. 253-54 (reporting that Herthel was standing near Granger when Granger hugged and kissed women at work); Cates Dep. 29-30 (noting that she and Herthel knew of Granger's hugs "[b]ecause it was in front of all of us at the Benefits conference"); Herthel Dep. 49-51, Dkt. No. 70-15 (acknowledging that Granger hugged numerous employees); Sessoms Dep. 17-18 (stating that Herthel and Cates had both been present when Granger would hug and kiss women at work).) Granger also previously kissed Disbennett-Albrecht, who was Back's supervisor after Back transferred to Wytheville. At one point, Granger even told Disbennett-Albrecht that he wanted to see her naked and asked to go to her hotel room. (Disbennett-Albrecht Dep. 60-63.) However, Herthel acknowledged that until June 7, 2017, he never told Granger to stop hugging DVS employees. (Herthel Dep. 55, 74.) Rather, Herthel explained that "lots of folks" in the western part of Virginia "hug each other," while at the same time stating, "that is not something that I'm comfortable with. I don't like personally to be hugged." (Id. at 74.)

B. Granger's Interactions with Back

Granger's physical interactions with Back started when he hugged Back on her first day with DVS. Back recalled thinking that Granger's hug that first day was "highly inappropriate." (Back Dep. 91-92.) Even after Back began working in Salem, Granger would hug her or kiss her on the cheek or forehead when he saw her. As time went on, his hugs got tighter, and he would hold her for longer. (Id. at 92, 136-37, 255.) Granger testified that Back initiated several hugs and that some of the hugs were "mutual." (Granger Dep. 194-95.) Conversely, Back stated that she never initiated a hug because she is "not a hugger of men," but sheacknowledged that she would "wrap [her] arms around him" when he initiated a hug. (Back Dep. 172.)

Back testified that in July 2015, Granger gave her a tight hug and kissed her on the lips. Although Back was "stunned," "immediately upset," and considered the kiss harmful, she did not fear for her safety and did not complain to management. (Id. at 126-29, 143-44.) According to Back, several other employees witnessed the kiss. (Id. at 127-28 (listing Erin Smither, Jenny White, Melissa Henninger,² Candi Wade, and Barbara Smith as witnesses).) Back also reported the kiss to Pam Zirkle and Brittany Dickerson, but she asked Zirkle not to tell anyone about it. (Id. at 131-32; Zirkle Dep. 28.) Back testified that when she told Dickerson about her encounter, Dickerson told her Granger also hugged and kissed her. (Back Dep. 132.)

However, Granger disputes that he ever kissed Back on the lips (Granger Dep. 194-95), and Back's alleged witnesses do not remember seeing Granger kiss Back (Smither Dec. ¶ 7; White Dec. ¶ 9; Wade Dep. 19; Smith Dec. ¶ 5, Dkt. No. 69-12). Additionally, Dickerson stated that she "never saw Mr. Granger give Ms. Back a kiss on the lips, nor did Ms. Back ever tell me about such an event." (Dickerson Decl. ¶ 7.)

On June 7, 2017, Herthel told Granger to stop hugging DVS employees after receiving complaints of sexual harassment involving Granger and another employee, Rashaan Vaughn. (Herthel Dep. 55.) Nonetheless, Granger, who believed Herthel's instruction was "petty" (Granger Dep. 170), continued hugging DVS employees and, on around June 28 or 29, gaveBack a tight hug and...