German v. Agri Dynamics, Inc., No. 1:2011cv00059 - Document 73 (M.D. Ga. 2013)
Court Description: ORDER granting 46 Motion for Partial Summary Judgment as to Plaintiff's hostile work environment claim (Count II). The Court will set this case for jury trial as to Plaintiff's sex discrimination claim related to her demotion and termination for the October 2013 Trail Term by separate Order. Ordered by Judge W. Louis Sands on 8/20/2013. (bcl)
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German v. Agri Dynamics, Inc. Doc. 73 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E MID D LE D ISTRICT OF GEORGIA ALBAN Y D IVISION DEBORAH K. GERMAN, Plain tiff, v. AGRI DYNAMICS, INC., AGRI DYNAMICS, INC. d/ b/ a INDUSTRIAL MANUFACTURING d/ b/ a INDUSTRIAL MANUFACTURING CO Defen dan t. : : : : : : : : : : : : : : CASE NO.: 1:11-CV-0 59 (WLS) ORD ER Presen tly pen din g before the Court is Defen dan t Agri Dyn amics, In c.’s Motion for Partial Sum m ary J udgm en t (Doc. 46). For th e followin g reason s, Agri Dyn am ics, In c.’s Motion for Partial Sum m ary J udgm en t (Doc. 46) is GRAN TED . I. PROCED U RAL H ISTORY Plain tiff Deborah K. Germ an worked for Agri Dyn am ics, In c. (“AGI” or “Defen dan t”) from Decem ber 1, 20 0 4 to Septem ber 23, 20 0 9. (Doc. 46-1 ¶ 1.) Plain tiff filed a Complain t in the above-caption ed matter, assertin g claims for sex discrimin ation (Coun t I) and hostile work en viron m en t (Coun t II) in violation of Title VII of th e Civil Righ ts Act of 1964, as am en ded at 42 U.S.C. § 20 0 0 e et seq.1 (Doc. 1.) Plaintiff began workin g for ADI as a production superin ten den t on Decem ber 1, 20 0 4. (Id. ¶ 8.) Plain tiff was rem oved from the position of production superin ten den t on or about Septem ber 22, 20 0 9. (Id. ¶ 20 .) Plain tiff con ten ds that she was demoted an d replaced Plaintiff’s Com plaint also included a third claim for negligent hiring and supervision (Count III) that was voluntarily dismissed by Plaintiff on J uly 19, 20 11. (Doc. 23 at 13-14.) 1 1 Dockets.Justia.com with a male after complain in g about the male sales staff’s in terferen ce with h er job duties. (Id.) Defen dan t denies this allegation . (Doc. 27 ¶ 20 .) Plain tiff was termin ated on October 29, 20 0 9. (Doc. 1 ¶ 22.) On February 20 , 20 13, Defen dan t m oved for partial sum m ary judgm en t as to on ly Coun t II—Plain tiff’s hostile work en viron m en t claim. (Doc. 46.) Plain tiff filed h er Response in Opposition to this motion on March 27, 20 13. (Doc. 62.) Defen dan t filed its Reply on April 29, 20 13. (Doc. 71.) The briefin g for Defen dan t’s Motion for Summary J udgmen t h as con cluded, an d th e Court fin ds th at Defen dan t’s Motion for Sum m ary J udgm en t is ripe for review. II. RELEVAN T FACTU AL BACKGROU N D Th e followin g facts are derived from th e Com plain t (Doc. 1); Defen dan t’s An swer (Doc. 27); Defen dan t’s Statemen t of Un disputed Facts (Doc. 46-1) an d Plain tiff’s Response to Defendan t’s Statem en t of Undisputed Facts (Doc. 63 at 1-5); an d Plaintiff’s Statemen t of Disputed Material Facts (Id. at 5-10 ) an d Defen dan t’s Respon se to Plaintiff’s Statem en t of Disputed Facts (Doc. 72), all of which were subm itted pursuant to Local Rule 56 2; an d th e record in this case. Where relevan t, th e factual summary also 2 Local Rule 56 states: The movant for summ ary judgm ent under Rule 56 of the Federal Rules of Civil Procedure shall attach to the m otion a separate and concise statem ent of the m aterial facts to which the movant contends there is no genuine issue to be tried. Each m aterial fact shall be num bered separately. Statem ents in the form of issues or legal conclusions (rather than m aterial facts) will not be considered by the court. Affidavits and the introductory portions of briefs do not constitute a statem ent of m aterial facts. The respondent to a motion for summary judgm ent shall attach to the response a separate and concise statem ent of m aterial facts, num bered separately, to which the respondent contends there exists a genuine issue to be tried. Response shall be m ade to each of the m ovant’s numbered m aterial facts. All m aterial facts contained in the m oving party’s statem ent which are not specifically controverted by the respondent in respondent’s statem ent shall be deem ed to have been adm itted, unless otherwise inappropriate. The respon se that a party has insufficien t knowledge to adm it or den y is 2 contains un disputed an d disputed facts derived from the pleadings, th e discovery an d disclosure materials on file, an d an y affidavits, all of which are con strued in a light most favorable to Plain tiff as th e n on m ovin g party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Fed. R. Civ. P. 56. Plain tiff was employed with Agri Dyn amics, In c. from December 1, 20 0 4 to Septem ber 23, 20 0 9, as a Production Superin ten den t. (Doc. 46-1 ¶ 1.) Durin g Plain tiff’s em ploym en t, AGI states th at it m ain tain ed an Em ployee Han dbook (the “Han dbook”) th at included a Sexual H arassm en t policy (the “Policy”) prohibiting slurs, jokes, an d oth er verbal, graph ic, or physical con duct relatin g to an in dividual’s race, color, sex, age, religion , n ation al origin , or physical or m en tal handicap.3 (Doc. 46 ¶ 2.) Th e Policy also proh ibited un solicited sexual advan ces, request for sexual favors or verbal, graphic, or physical conduct of a sexual n ature. (Id.) Plain tiff was aware, an d received a copy, of the Sexual Harassm en t Policy.4 (See Doc. 54 at 133:7-134:1) (In her deposition , Plain tiff states that the Policy “was in the h andbook that [she] . . . received”). Th e Han dbook directed an y em ployee to im m ediately con tact his or her supervisor if he or she felt th ey h ad been h arassed. (Doc. 46-1 ¶ 3.) The Handbook also con tain ed an Open Door Policy that emph asized commun ication between man agers an d employees, an d urged not an acceptable response unless the party has complied with the provisions of Rule 56(f) of the Federal Rules of Civil Procedure. All documents and other record materials relied upon by a party moving for or opposing a m otion for summ ary judgm ent shall be clearly identified for the court. Where possible, dates, specific page numbers, and line numbers shall be given. M.D. Ga. R. 56. Because Defendant’s motion for partial sum m ary judgm ent just relates to the Hostile Work Environm ent claim , the Court will only discuss the facts that are relevant to this claim . 4 In her Response to Defendant’s Statement of Facts, Plaintiff states that it is disputed whether AGI had a sexual harassm ent policy in place because of a discrepancy involving a handbook provided during the deposition of AGI’s President J am es Whitten. (Doc. 63 at 1-2 ¶ 2.) However, there appears to be no dispute that Plaintiff received a copy, and was aware, of the existence of a sexual harassm ent policy at AGI. (Doc. 54 at 133:7-134:1.) 3 3 em ployees to com mun icate with their supervisor about complain ts or question s regardin g th eir em ploym en t. (Id. ¶ 4.) In her Complain t, Plain tiff alleges that “[w]hile workin g at Defen dan ts, [sh e] witn essed a culture th at valued men over women . Defen dan ts treated women as bein g ben eath the men workin g there.” (Doc. 1 ¶ 11.) Plain tiff states th at sh e “witn essed in stances wh ere m en were allowed to break rules that wom en were n ot allowed to break.” (Id.) Per Plain tiff, th e en tire sales staff at AGI was all male. (Id. ¶ 13.) Defen dan t den ies this fact. (Doc. 27 ¶ 13.) It appears that Plain tiff’s difficulties began when she complain ed to man agemen t about th e fact th at th e sales staff was improperly takin g inven tory from th e storeroom to give to customers th e salesm en wan ted to keep h appy. (Doc. 1 ¶ 14.) Plain tiff alleges that th is practice violated AGI’s rules for in ven tory con trol for wh ich Plain tiff was respon sible. (Id. ¶ 14.) Plain tiff states th at, as a con sequence of th e sales staff’s action s, sh e was prohibited from accurately keepin g up with the in ven tory for wh ich sh e was respon sible. (Id. ¶ 15.) Plain tiff states th at h er commen ts to man agemen t upset th e m ale sales staff. (Id. ¶ 17.) Per Plain tiff, Curt Davis and Dale Baxley, both m ale salesm en , referred to Germ an as th e “queen bee” an d made statemen ts such as “she’s goin g to get kn ocked down .” (Id. ¶ 18.) Davis an d Baxley also allegedly referred to Plain tiff as a “bitch.” (Id.) The on ly commen t th at Plain tiff heard person ally was the “queen bee” statemen t. (Doc. 54, 288:23-290 :13.) Plain tiff n ever h eard an y of the other statemen ts directly from an y in dividual. (Id. at 288:23-25.) Rather Mark Davis, an employee of AGI, stated th at he heard a male employee refer to Plain tiff as a “bitch ” after Plain tiff asked th e employee to do somethin g th at he did n ot wan t to do. (Doc. 48 , 9:11-15.) When Plain tiff walked off, th e employee called Plain tiff a “bitch ” behin d her 4 back. (Id. at 9:14-15.) In an other in ciden t, Mary Weaver, an other employee of AGI, states th at Davis an d Baxley complain ed to h er th at Plain tiff “was just bein g a bitch,” “th in ks sh e’s a queen bee,” an d “[is] goin g to get kn ocked down .” (Doc. 49-2 at 173:4174:13.) Weaver stated, however, that she “never told [Plain tiff] the th in gs they’ve said about h er.” (Id. at 174:18-20 .) Plain tiff also alleges th at certain salesm en spoke to her in ways that made her feel sligh ted an d disrespected. (Doc. 46-1 ¶ 13.) For exam ple, salesm en would say: “Not n ow, Deborah, we’ll deal with that later. I’m dealin g with som eth in g im portan t.”/ “You n eed to com e up here, we n eed to talk.” (Id.) Plain tiff further alleges th at she felt degraded by Davis an d Baxley’s request that sh e fill th e tires of a compan y veh icle they were drivin g. (Doc. 63 at 3 ¶ 14; Doc. 46-1 ¶ 14.) Per Plain tiff, th ese em ployees “had in fluen ce over h er job.” (Doc. 63 at 3 ¶ 14.) Plain tiff also con ten ds that, alth ough she reported to Mr. Wh itten that sh e con fiscated porn ography from m ale shop em ployees on two to three occasion s, Mr. Wh itten did n ot punish the offen ders or follow up. (Doc. 63 at 4 ¶¶ 20 -22; Doc. 54 at 293:24-294:2.) Plain tiff, admits, h owever that she told Mr. Wh itten th at sh e “h ad already h an dled it.” (Doc. 46-1 ¶ 22; Doc. 63 at 4 ¶ 22.) Plain tiff also alleges th at Defen dan t “allowed th e break room to become such a vulgar en viron m en t that it often became in tolerable for women , in cludin g [Plain tiff], to eat lun ch in th e break room .” (Doc. 1 ¶ 23.) Accordin g to Plain tiff, sh e was “constructively barred from usin g the break room , as were other fem ales, because of the vile atmosph ere Defen dan t allowed to exist in the break room .” (Doc. 63 at 4 ¶ 23.) Plain tiff admitted to usin g profan ity at work, but stated th at her profan ity was on ly used in the presen ce of an other wom an . (Id. at 4 ¶¶ 24-25.) 5 Plain tiff’s employmen t with AGI was termin ated on September 23, 20 0 9. (Doc. 46-1 ¶ 1.) Plain tiff alleges that she was even tually demoted by Mr. Whitten an d term in ated because she is a wom an . (Doc. 63 at 8 ¶ 19.) Per Plain tiff, “Witten ’s reason in g an d decision were in fluenced by male em ployees such as Curt Davis and Dale Baxley, am on g others.” (Id. at 8 ¶ 19.) I. D ISCU SSION A. Su m m ary Ju d gm e n t Stan d ard Pursuan t to Fed. R. Civ. P. 56, sum m ary judgm en t is proper “if the pleadin gs, deposition s, answers to in terrogatories, an d admissions on file, together with th e affidavits, if any, show that there is n o genuine issue as to any material fact an d th at the movin g party is en titled to judgmen t as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if the quan tum an d quality of proof n ecessary to support liability under the claim is raised. Allen v. Ty son Foods, 121 F.3d 642, 646 (11th Cir. 1997). A fact is “m aterial” if it hin ges on the substan tive law at issue an d it migh t affect the outcom e of the non movin g party’s claim. An derson v. Liberty Lobby , 477 U.S. 242, 248 (198 6); see also Allen , 121 F.3d at 646. A judgm en t is appropriate “as a m atter of law” when the n onm ovin g party h as failed to m eet its burden of persuadin g th e Court on an essen tial elem en t of the claim. See Cleveland v. Policy Managem ent Sy s. Corp., 526 U.S. 795, 80 4 (1999); Celetox, 477 U.S. at 323. Th e movan t bears the in itial burden of showin g that there is n o gen uin e issue of material fact. See Celotex, 477 U.S. at 323. The m ovan t can m eet th is burden by presen tin g eviden ce showin g there is n o dispute of m aterial fact or by showin g or poin tin g out to th e district court th at the n onm ovin g party h as failed to presen t eviden ce in support of som e elem en t of its case on which it bears the ultim ate burden of proof. 6 See id. at 322-24. On ce the m ovant h as m et its burden , the nonm oving party is required “to go beyon d th e pleadin gs” an d iden tify “specific facts showin g that there is a gen uin e issue for trial.” Id. at 324. To avoid sum m ary judgm en t, th e n on m ovin g party m ust do more than summarily den y the allegation s or ‘show that th ere is some metaphysical doubt as to the material facts.” Matsuhita Elec. In dus. Co. v. Zen ith Radio Corp., 475 U.S. 574, 586 (1986). On a motion for summary judgmen t, th e Court must view all the eviden ce an d all factual in feren ces drawn therefrom in the light most favorable to the n on m ovin g party an d determ in e wh eth er th at eviden ce could reason ably sustain a jury verdict. See Celotex, 477 U.S. at 322-23; Allen , 121 F.3d at 646. However, th e Court m ust gran t summary judgmen t if th ere is n o genuin e issue of material fact an d th e movan t is en titled to sum m ary judgm en t as a m atter of law. Fed. R. Civ. P. 56(c). Havin g establish ed th e applicable summary judgmen t stan dards, th e Court now evaluates wh eth er an y gen uin e material issue of fact remain s that would preclude summary judgmen t in Defen dan t’s favor on Plain tiff’s hostile work en viron m en t claim. B. An alys is “A h ostile work en viron m en t claim under Title VII is establish ed upon proof th at th e workplace is permeated with discrimin atory in timidation , ridicule, an d insult, that is sufficien tly severe or pervasive to alter th e con dition s of the victim's employmen t an d create an abusive workin g en viron m en t.” Miller v. Ken w orth of Dothan , In c., 277 F.3d 1269, 1275 (11th Cir. 20 0 2). Title VII is n ot m ean t to serve as “a gen eral civility code.” Satchel v. Sch. Bd. of Hillsborough Cn ty ., 251 F. App’x 626, 630 (11th Cir. 20 0 7) (citin g On cale v. Sun dow ner Offshore Servs., In c., 523 U.S. 75, 81 (1998)). As such, to prove a prim a facie case of hostile workin g en viron men t, a plain tiff must establish that: (1) she 7 belon gs to a protected group; (2) she was subjected to un welcom e h arassm en t; (3) th e harassm en t was based upon a protected characteristic (h ere, sex); (4) the harassm en t was sufficien tly severe or pervasive to alter th e terms or con ditions of employmen t an d create a discrimin atorily abusive workin g en viron m en t; and (5) the employer is respon sible for said environ m en t un der either a theory of direct or vicarious liability. Miller, 277 F.3d at 1275. Defen dan t moves for partial summary judgmen t on Plain tiff’s hostile work en viron m en t claim, con ten din g th at while Plain tiff is in a protected group, sh e cann ot establish an y of the remain in g elemen ts of her claim. Specifically, Defen dan t con ten ds that 1) other than isolated referen ces to Plain tiff as “queen bee” or “bitch,” n on e of the oth er con duct alleged by Plain tiff to support h er h ostile work en viron m en t claim are related to her sex; rath er th ey con stitute gen der n eutral con duct motivated by person al an im osity related to Plain tiff’s treatmen t of th e sales staff; 2) even if all of the con duct can be considered sex-related, it falls short of the severe or pervasive conduct required to establish a hostile work en viron m en t claim; an d 3) because th e alleged h arassm en t was don e by Plain tiff’s coworkers, n ot her supervisor, an d th ere is n o eviden ce th at Defen dan ts kn ew or should have kn own of such conduct, there is n o basis for imposin g vicarious liability. (Doc. 46-2 at 3.) Because the Court similarly agrees th at this case is on e of coworker h arassm en t for which Plain tiff h as failed to establish an y facts givin g rise to a basis for holdin g Defen dan t liable, th e Court fin ds that Defen dan t h as demon strated its en titlemen t to judgmen t as a matter of law. Specifically, on th e liability pron g, Defendan t conten ds th at all of th e h arassm en t of which Plain tiff complains was committed by coworkers with n o authority over her. (Id. at 18.) To th is en d, Defen dan t argues th at Plain tiff failed to demon strate th at 8 Defen dan ts kn ew or should have kn own of the alleged harassm en t by Plain tiff’s coworkers. (Id.) Defen dan t n otes that th e on ly con duct Plain tiff reported to th e Mr. Wh itten , the own er an d presiden t of AGI, was the two or three in ciden ts where sh e allegedly saw porn ographic im ages in a m agazin e an d on e in appropriate picture brought by em ployees that work in the shop. (Id. at 18-19.) Plain tiff, however, in form ed Mr. Wh itten that she h ad already h an dled the situation . (Id. at 19; see also Doc. 54 at 293:714.) Th us, Defen dan t con ten ds th at “Plain tiff’s failure to complain about an y sexual h arassm en t or in form Mr. Whitten that th e con duct was still occurrin g, despite th e existen ce of adequate complain t policies and procedures bein g in place, is fatal to h er claim .” (Doc. 46-2 at 19.) In opposition to Defen dan t’s position , Plain tiff con ten ds that Defen dan t should be h eld liable for th e hostile work en viron m ent because “[t]h e male sales staff exh ibitin g hostility towards [her] had influence over her job.” (Doc. 62 at 12.) Plaintiff also states that Mr. Wh itten “was in formed of th e porn ography an d took n o action .” (Id. at 12-13.) As for th e harassm en t policy, Plain tiff alleges th at Defen dan t failed to establish a sexual h arassm en t policy an d th en subsequen tly attempted to cover th is up durin g discovery. (Id. at 13.) As to Plain tiff’s first con ten tion —that Defen dan t is vicariously liable because th e m ale sales staff h ad “influence” over h er job—the Court finds this argum ent to be untenable.5 “The basis of an em ployer's liability for [a] hostile en viron m en t ... depen ds on wh ether the harasser is the victim 's supervisor or m erely a coworker.” Lew is v. U.S. Here, the Court is assum ing that Plaintiff m ade her statem ent about the “influence” of the m ale sales staff to argue in support of the employer’s vicarious liability for the harassment. In her brief in opposition to summ ary judgment, Plaintiff did not parse out her liability arguments and appears to have conflated the various tests for liability. Since liability is an im portant elem ent of the prim a facie case, especially where coworker harassm ent is involved, the Court is perplexed by the vague and cursory treatm ent given to the liability issues. 5 9 Dept. of Labor, Adm in. Review Bd., 368 F. App’x 20 , 31 (11th Cir. 20 10 ) (citation s om itted). “An em ployer is subject to vicarious liability to a victim ized employee for an action able h ostile en viron m en t created by a supervisor with immediate (or successively h igh er) authority over the em ployee.” Miller, 277 F.3d at 1278 (quotin g Faragher v. City of Boca Raton, 524 U.S. 775 1998)). In Van ce v. Ball State Univ., 133 S. Ct. 2434 (20 13), the Supreme Court recen tly clarified who is a “supervisor” for the purpose of establishin g vicarious liability un der Title VII. Per the Court, “an employer may be vicariously liable for an employee’s un lawful harassm en t on ly wh en th e employer h as empowered that employee to take tan gible em ploymen t action s again st the victim , i.e., to effect a “sign ifican t chan ge in employmen t status, such as hirin g, firin g, failin g to prom ote, reassign m ent with significan tly different respon sibilities, or a decision causing a sign ifican t chan ge in ben efits.” Id. at 2443. The Court wen t on to m ake clear th at th e law “presupposes a clear distinction between supervisors and co-workers” as opposed to som e “nebulous definition of a ‘supervisor.’” Id. Plain tiff may n ot avoid this distin ction, for th e purpose of attaching vicarious liability, by stating vaguely that “[t]he male sales staff exhibitin g hostility towards [her] had in fluence over her job.” Plain tiff presen ted n o evidence to sh ow th at the sales staff were her supervisors, other than her un supported assertion they retain ed an ability to exercise in fluen ce over h er job. As such , Plain tiff has failed to demon strate that the sales staff were con sidered her supervisors an d has therefore failed to establish an y basis for holdin g Defen dan t vicariously liable for the alleged h arassm en t. Therefore, because the record reflects that the in dividuals wh o allegedly h arassed Plain tiff were m erely her coworkers, Defen dan t can on ly be held directly liable if “it knew (actual notice) or should have known (constructive notice) of the harassm en t and 10 failed to take remedial action .” Breda v. W olf Cam era & Video, 222 F.3d 886, 889 (11th Cir. 20 0 0 ) (citation omitted). “Under this theory of direct liability, th e [defen dant] can be held liable for its own n egligen ce or recklessn ess, but n ot for the conduct of its ... em ployees.” Faragher v. City of Boca Raton, 111 F.3d 1530 , 1535 (11th Cir. 1997), rev’d on other groun ds by Faragher v. City of Boca Raton, 524 U.S. 775 (1998)). “Thus, a victim of the coworker harassm en t must show either actual kn owledge on the part of th e employer or con duct sufficien tly severe and pervasive as to con stitute constructive kn owledge to the em ployer.” Miller, 277 F.3d at 1278 (citin g Breda, 222 F.3d at 889). Here, Plain tiff con ten ds that Defen dan t is liable because Mr. Whitten “was in form ed of th e porn ography and took n o action .”6 Th is statem en t, con tain ed in Plain tiff’s respon se in opposition to Defen dan t’s Motion for Summary J udgmen t, is the on ly detailed report of a complain t th at Plain tiff referen ces in support of h er h arassm en t claim s.7 (See Doc. 62 at 12-13.) Plain tiff states that she in formed Mr. Whitten that she con fiscated porn ography from som e of the m ale shop em ployees on two or three Plaintiff also alleged that Defendant is “responsible for the hostile work environm ent endured by [Plaintiff]” because of Defendant’s “failure to establish a sexual harassment policy.” (Doc. 62 at 13.) The Court is unaware what this fact is intended to support or refute. Plaintiff m erely alleges the nonexistence of a policy as a fact without couching it in term s of a legal argum ent that defeats summ ary judgm ent. Nevertheless, as noted previously in this order, Plaintiff was aware of the existence of Defendant’s Sexual Harassment Policy. See n.4. 7 In her Statement of Material Facts, Plaintiff does state that she 1) “complained to management and m anagem ent took no steps to resolve [her] disparate treatm ent” and 2) “com plained about the disparate treatm ent she was receiving.” (Doc. 63 at 6 ¶¶4-5.) However, Plaintiff provides no further facts about these alleged com plaints and the evidence to which she cites to support these claim s is insufficient to create a genuine issue of m aterial fact on Plaintiff’s hostile work environm ent claim . To show that she com plained to m anagem ent about her disparate treatm ent, Plaintiff cites to the Declaration of Mary Weaver. (Id. ¶ 4.) In her Declaration, however, Ms. Weaver states only that Plaintiff complained to management about the male sales staff’s conduct regarding inventory parts. This allegation, even if credited despite the fact that it is not derived from Ms. Weaver’s personal knowledge, is not an allegation of sexual harassment. As the Court understands the facts, Plaintiff’s complaint about the inventoryrelated conduct of the sales staff is what gave rise to the subsequent harassing conduct; it was not the harassm ent itself. As such, the complaint about the staff’s conduct related to inventory alone is insufficient to show that Plaintiff complained about harassing conduct. Plaintiff’s second citation is to page 321 of her deposition, nothing m ore. (Id. ¶ 5.) This page, however, gives no indication as to what evidence Plaintiff is attempting to use to support her contention that she m ade com plaints to m anagem ent for which there was no rem edial action. In fact, this citation 6 11 occasion s. (Doc. 54 at 291:3-292:4.) Per Plain tiff, however, she then told Mr. Whitten th at sh e h ad “already h andled it.” (Id. at 293:7-14.) Though Plain tiff states h er belief th at Mr. Whitten should have “followed up,” (id. at 293:25-294:1-2), she fails to in dicate th at sh e gave Mr. Wh itten in form ation about an y residual problems that required further action from him. Miller, 277 F.3d at 1278 (explain in g th at actual n otice of h arassm en t may be established by “appriz[ing] the [employer] of th e dimensions of the problem or even that there w as a problem that required his atten tion ”) (citations an d quotations om itted). Plain tiff’s own version of th e facts demonstrates that she gave Mr. Wh itten assuran ces that the issues surroun din g th e porn ography had been taken care of (by h er). As such, aside from offerin g h er belief that Mr. Whitten should have don e someth in g addition al, Plain tiff has failed to demon strate that Mr. Whitten ’s in action was un reason able, on these facts. Coates v. Sundor Brands, In c., 164 F.3d 1361, 1364 (11th Cir. 1999) (n otin g th at the appropriate in quiry is whether th e employer’s action s (or lack thereof) were reason able). Therefore, Plain tiff h as failed to presen t eviden ce showin g that th ere is an y basis for h oldin g Defen dan t directly liable for an y h arassin g con duct. Accordin gly, because Plain tiff h as failed to establish Defen dan t’s liability, either vicarious or direct, Plain tiff h as failed to satisfy her burden of establishin g a prim a facie claim for a h ostile work en viron men t.8 appears to be a citation to evidence meant to show that Plaintiff was treated disparately when compared to her male comparators. Such evidence, however, is not relevant to Plaintiff’s hostile work environm ent claim s. If there is other evidence of complaints, Plaintiff has failed to address these in her brief or statem ent of facts. Though the Court is required to m ake an independent review of the record before deciding Defendant’s Motion for Sum m ary J udgm ent, “[a] litigant on sum m ary judgm ent cannot shift their burden to the court by sim ply referring generally to the existence of “evidence” in volum inous exhibits, large portions of which are not addressed in his brief, with the expectation that the court will unearth any beneficial evidentiary nuggets that the filer m ay have neglected to m ention.” Alexander v . City of Muscle Shoals, Ala., 766 F. Supp. 2d 1214, 1237 n.113 (N.D. Ala. 20 11). 8 As it relates to liability, Plaintiff m ade no argum ents regarding harassm ent for which Defendant had constructive notice. Therefore, the Court has lim ited its analysis to the notice Plaintiff states that she gave Mr. Whitten. 12 CON CLU SION For the foregoin g reason s, Defen dan t’s Motion for Partial Summary J udgmen t (Doc. 46) as to Plain tiff’s h ostile work en viron m en t claim (Coun t II) is GRAN TED . Th e Court will set th is case for jury trial as to Plain tiff’s sex discrimin ation claim related to h er dem otion an d term in ation for the October 20 13 Trial Term by separate Order. SO ORD ERED , th is 20 th day of August, 20 13. / s/ W. Louis San ds TH E H ON ORABLE W . LOU IS SAN D S, U N ITED STATES D ISTRICT COU RT 13
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