Phillips v. Tekpak

NAVOLIN PHILLIPS Plaintiff, v. TEKPAK Defendant.

CIVIL ACTION NO. 16-00152-KD-B

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION

July 11, 2017

ORDER

This matter is before the Court on Defendant Tekpak's ("Tekpak") Motion for Summary Judgment, Plaintiff Navolin Phillips' ("Phillips") response, and Tekpak's reply. (Docs. 29, 31, and 32). Upon consideration, Tekpak's Motion for Summary Judgment (Doc. 29) is GRANTED in part and DENIED in part.

I. Findings of Fact¹

On March 2, 2015, Phillips began working at Tekpak's location in Marion, Alabama. Tekpak is a "manufacturing company which, as part of its services packs various food items for its customers." (Doc. 1 at 1, ¶5). Phillips was contracted through a temp agency. (Doc. 1 at 1, ¶ 7).

On Friday, April 3, 2015, Phillips was working a night shift on the seasoned salt packing line. Her immediate supervisor was Robert Boykin ("Boykin"). During the shift, Phillips and a co-worker had an argument. (Doc. 29-13 at 35; Dep. Phillips at 112). Following the dispute, Boykin moved Phillips to a different section of the workplace, away from the co-worker. (Doc. 29-13 at 33; Dep. Phillips at 131). Phillips was displeased with the co-worker's treatment of herand with Boykin's reaction to the dispute. (Doc. 29-13 at 33-34; Dep. Phillips at 132-133). As a result, Phillips expressed her complaints to Boykin. (Id.)

During the same shift, just after Phillips complained to Boykin, he "inappropriately touch[ed] her on her rear-end and arm...." (Doc. 1 at 1, ¶10). Specifically, Boykin grabbed Phillips by the rear end, shook her rear end, made a grunting noise, and pushed her into a pallet. (Doc. 29-13 at 38, 39; Dep. Phillips at 149-156). After this incident, Phillips told Boykin she was going to report him to the human resources department. (Doc. 1 at 1, ¶ 11; Doc. 29-13 at 34, 39; Dep. Phillips at 135, 149). Phillips remained at work until her shift concluded.

After this shift, Boykin wrote a note to his supervisor, Robert Askew ("Askew"). The note² stated:

I Robert Boykin, 2nd/shift Production Supervisor, would like immediately termination. For employee, Navolin Phillips. She is a Temp, employee will not listen or follow work Procedures. Navolin always got something smart to say, when [quality control] or Supervisor tell her how to do her job properly. Navolin Phillips, work are unsatisfactory work. If I Let Navolin stay I would be gambling with the Quality of my work. Robert Boykin 4/3/15

(Doc. 31-1). Based on Boykin's recommendation, the morning of Monday, April 6, 2015, Askew instructed Tekpak's Assistant Human Resources Coordinator Elsie Essex ("Essex") to terminate Phillips. That day, Essex called Phillips to tell her not to report back to Tekpak until further notice.

On April 15, 2015, Phillips filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). (Doc. 29-4). On April 12, 2016, after she had received a Notice of Right to Sue letter, Phillips filed the instant complaint against Tekpak, alleging a claim of sexual harassment and a claim of retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. ("Title VII"). (Doc. 1; Doc. 1 at ¶2). Tekpak has moved for summary judgment on both claims.

II. 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). Rule 56(c) provides as follows:

(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. Rule 56(c).

The party seeking summary judgment bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes 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 (1986)). If the nonmovant fails to make "a sufficient showing on an essential element of her case with respect to which she has the burden of proof," the movant is entitled to summary judgment. Celotex, 477 U.S. at 323. In assessing whether the nonmovant has met its burden, "the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter....Instead, '[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 999 (11th Cir. 1992).

III. Analysis

Phillips raises Title VII claims for sexual harassment and retaliation. As discussed herein, Defendant's motion for summary judgment as to Phillips' sexual harassment claim is GRANTED. Defendant's motion for summary judgment as to Phillips' retaliation claim is DENIED.

A. Sexual Harassment

Phillips alleges that Boykin sexually harassed her by grabbing her on the rear end, making grunting noises, and pushing her into a pallet on the night of April 3, 2015. To establish a prima facie case of sexual harassment under Title VII a plaintiff must show:

(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.

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.

Tekpak contends that Phillips fails to meet her burden with regard to the third and fourth Mendoza factors. (Doc. 29 at 17-24). As discussed below, Phillips has failed to establish a prima facie case of sexual harassment because she has failed to show that the alleged conduct "was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment." Hulsey, 367 F.3d at 1244. "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)(internal quotations and citations omitted).³

The determination whether the alleged conduct is severe and pervasive, such that it altered the terms and conditions of Phillips' employment, requires the Court to engage in a two-pronged inquiry. As explained in Mendoza,

Establishing that harassing conduct was sufficiently severe or pervasive to alter an employee's terms or conditions of employment includes a subjective and anobjective component. Harris, 510 U.S. at 21-22, 114 S.Ct. 367. The employee must "subjectively perceive" the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable. Id. The environment must be one that "a reasonable person would find hostile or abusive" and that "the victim ... subjectively perceive[s] ... to be abusive." Id. at 21, 114 S.Ct. 367. Furthermore, "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, 118 S.Ct. at 1003 (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367).

The objective component of this analysis is somewhat fact intensive. Nevertheless, the Supreme Court and this Court have identified the following four factors that should be considered in determining whether harassment objectively altered an employee's terms or conditions of employment: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance. Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir.1997) (citing Harris, 510 U.S. at 23, 114 S.Ct. 367). The courts 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. Id.; see Harris, 510 U.S. at 23, 114 S.Ct. 367; Henson, 682 F.2d at 904; Faragher, 118 S.Ct. at

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