Flippo v. Am. Power Source, Inc.

20 F.Supp.3d 1299

Sabrina J. FLIPPO, Plaintiff

v.AMERICAN POWER SOURCE, INC., et al., Defendants.

Case No. 6:12–cv–03500–MHH.

United States District Court, N.D. Alabama, Jasper Division.

Signed May 12, 2014.

John V. Martine, John V. Martine, Winfield, AL, Tim R. Wadsworth, Tim R. Wadsworth Law Offices PC, Sulligent, AL, for Plaintiff.

Christopher L. McIlwain, Hubbard McIlwain & Brakefield PC, Tuscaloosa, AL, for Defendants.

MEMORANDUM OPINION

MADELINE HUGHES HAIKALA, District Judge.

On April 18, 2014, the magistrate judge's report and recommendation was entered and the parties were allowed therein fourteen (14) days in which to file objections to the recommendations made by the magistrate judge. No objections to the magistrate judge's report and recommendation have been filed by plaintiff or defendants.

After careful consideration of the record in this case and the magistrate judge's report and recommendation, the court hereby ADOPTS the report of the magistrate judge. The court further ACCEPTS the recommendations of the magistrate judge that the motion for summary judgment filed by defendant be granted as to Counts One (Title VII sexually hostile environment), Two (Title VII sex discrimination) and Four (Title VII retaliation), and these claims dismissed with prejudice. The courts also accepts the recommendations of the magistrate judge that the court decline to exercise supplemental jurisdiction over Counts Three (negligent hiring, training, supervision and retention), Five (invasion of privacy), Six (assault and battery) and Seven (outrage), and that these claims be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c).

REPORT AND RECOMMENDATION

HARWELL G. DAVIS, III, United States Magistrate Judge.

The above-entitled civil action is before the court on the motion for summary judgment filed by defendants. (Doc. 15). Plaintiff, Sabrina J. Flippo, has filed suit against defendants, American Power Source, Inc. (APS) and Altino Arruda. Plaintiff alleges that APS violated Title VII by requiring that she work in a sexually hostile environment (Count One), discriminated against her on the basis of her sex (Count Two), and retaliated against her when she complained about this treatment (Count Four). She also alleges that APS is guilty of the state law tort of negligent hiring, training, supervision and retention of her alleged harasser, co-defendant Altino Arruda (Count Three). Plaintiff further alleges that Arruda is guilty of invasion of her privacy (Count Five) and assault and battery (Count Six) under Alabama law. Finally, she alleges that Arruda committed the state law tort of outrage against her and that APS subsequently ratified this conduct (Count Seven). See Doc. 1, Complaint.

Defendants filed an answer denying plaintiff's claims. (Doc. 4, Answer). In addition, defendants filed a motion for summary judgment, including evidentiary submissions. (Doc. 15, Motion for Summary Judgment). Plaintiff filed a response to this motion, also containing evidentiary submissions. (Doc. 16, Response in Opposition). Defendants subsequently filed two replies to plaintiff's response. (Docs. 17 & 18). The matter is now ready for disposition.

Standard of Review

“The court shall grant summary judgment 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. Fed.R.Civ.P. 56(a) (Dec. 2010). Rule 56(c) provides:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed.R.Civ.P. 56(c) (Dec. 2010).

Defendants, as the parties seeking summary judgment, bear the initial responsibility of informing the district court of the basis for their motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) ). A genuine issue of material fact is shown when the nonmoving party produces evidence so that a reasonable factfinder could return a verdict in its favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.2007). If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In reviewing whether the nonmoving party has met her burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in her favor. Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998–99 (11th Cir.1992) (internal citations and quotations omitted). However, speculation or conjecture cannot create a genuine issue of material fact. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir.2005). A “mere scintilla of evidence” in support of the nonmoving party also cannot overcome a motion for summary judgment. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.2004).

Factual Background

Defendant APS is a business which cuts and sews clothing items in a building in Fayette, Alabama. Plaintiff, Sabrina Flippo, worked as a bundler for APS. Her most recent employment began in 2008 and ended in March of 2011. (Flippo Depo. at 35). The role of a bundler is to sort, bundle, “shade mark,” and tag parts of fabric that have been cut so that they can be taken to the sewing department to be sewn together as garments. (Id. at 32–33, 61–87, 93, 98, 109–12, 115–17, 266; Taylor Depo. at 18–19, 21, 26–27, 32).

During most of her employment with APS, Flippo was supervised by Altino Arruda. Arruda was the Spreader Supervisor and the Bundler Supervisor. (Flippo Depo. at 118). The plant manager was Bonnie Taylor. Flippo believes that Taylor did a good job as manager of this APS facility. (Id. at 130–31). Flippo is also aware that APS had a sexual harassment policy in place during the time that she worked there. (Id. at 138). She testified that she has been aware of the policy ever since she began work there. (Id. at 145). She was provided a copy of the policy in 2006. (Id. at 146). The policy states that, if an employee believes he or she is the subject of harassment, the employee is to inform the plant manager. (Id. at 147).

Flippo was involved in a romantic relationship with Arruda from October 2008 until June or July 2009. (Id. at 152, 178, 247). According to Flippo, the relationship was consensual. (Id. at 176). In her deposition testimony, Flippo states that, when plant manager Bonnie Taylor found out about her relationship with Arruda, Taylor discouraged it and told plaintiff she should “nip it in the butt.” (Id. at 188–89).

Flippo acknowledges that she had sexual relations with Arruda. Initially, she claimed that she only had sex with Arruda on one occasion. (Id. at 167). However, she later admitted that her relationship with him was more involved. (Id. at 241–42). Flippo admitted that she stayed overnight at Arruda's residence on about ten occasions and may have stayed over on consecutive nights on occasion. (Id. at 184–86). According to Flippo, it was her decision to spend time with Arruda and that he never threatened her job or told her that she would lose her job if she did not continue to have a relationship with him. (Id. at 179, 180, 187).

Despite Taylor's attempt to discourage plaintiff's relationship with Arruda, which occurred in January 2009, plaintiff continued with it for several more months. (Id. at 194). She told Taylor that Arruda knew how to “wine and dine” a woman. (Id. at 196–97).

Eventually, Flippo ended the relationship. She testified that she told Arruda she was not going to be coming to his house any more and would be spending time tending to her sick mother. (Id. at 214). Flippo testified that Arruda offered to come over to her mother's house and sit there with her. (Id. ). She believes that he just wanted to be with her all the time. (Id. at 208–09). Flippo testified that when she declined, Arruda got mad and said that he did not understand. However, he did not yell or scream at her. (Id. at 218, 219).

Flippo testified that, after she broke up with Arruda, she tried to stay friends with him. She took him to the airport on a couple of occasions. (Id. at 227). At her request, he also helped Flippo and her niece move a new set of mattresses in his truck in January 2011. (Id. at 222, 225). He also put some underpinnings on her house in 2010, again at her request. (Id. at 221, 225–26). Flippo testified that after the breakup, Arruda continued to ask her to go out with him, beginning in August 2009, right...