MOSER v. MCC OUTDOOR, L.L.C. et al, No. 1:2005cv00288 - Document 84 (M.D.N.C. 2009)
Court Description: MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 6/25/2009, that the Defendants' renewed motion for summary judgment (Doc. 64 ) is GRANTED as to Moser's co-worker hostile work environment claim and DENIED as to Moser's supervisor-created hostile work environment claim. (Lloyd, Donna) (Additional attachment(s) added on 7/2/2009: # 1 Main Document) (Franklin, Grady).
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA SERENA C. MOSER, Plaintiff, v. MCC OUTDOOR, L.L.C. and SHIVERS TRADING & OPERATING CO., Defendants. ) ) ) ) ) ) ) ) ) ) 1:05cv00288 MEMORANDUM OPINION AND ORDER THOMAS D. SCHROEDER, District Judge. This is an employment discrimination case for supervisor and co-worker hostile work environment sexual harassment brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Before the court is Defendants renewed motion for summary judgment (Doc. 64), made upon remand from the court of appeals. by an employee Defendants argue that Plaintiff s claims are barred affirmative fails to defense report that alleged prevents recovery harassment mechanisms made available by the employer. under where an reasonable For the reasons that follow, the court concludes that summary judgment is appropriate as to the co-worker hostile work environment claim but that genuine issues of material fact prevent application of the affirmative defense to the claim of supervisor-created hostile work environment. Thus, Defendants renewed motion for summary judgment (Doc. 64) will be granted in part and denied in part. I. BACKGROUND A. Procedural History Plaintiff Serena Moser ( Moser ) filed this action on April 4, 2005, alleging hostile work environment, quid pro quo harassment, retaliatory discharge, disparate treatment, and state law wrongful discharge claims arising from her employment and termination Outdoor ). by (Doc. 2.) Defendant MCC Outdoor, L.L.C. ( MCC On August 30, 2006, another judge of this court entered summary judgment in favor of Defendants on all of Moser s employment discrimination claims, including her Title VII hostile work environment claim. Moser v. L.L.C., 459 F. Supp. 2d 415 (M.D.N.C. 2006). MCC Outdoor, On appeal, the Fourth Circuit reversed the grant of summary judgment on the hostile work environment claims district court s decision. App x 634 (4th Cir. 2007). but otherwise affirmed the Moser v. MCC Outdoor, L.L.C., 256 F. The Fourth Circuit held that there was sufficient evidence to create a genuine issue of material fact as to whether the conduct alleged was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment and thus remanded the case to this court for further proceedings. Defendants judgment that argued the in hostile their work 2 Id. at 639-40. initial motion environment for claims summary should be dismissed for two reasons: first, because Moser failed to make out a prima facie case of hostile work environment harassment; and second, because Moser s claims were barred by the affirmative defense recognized by the Supreme Court in Faragher v. City of Boca Raton, Industries, Inc. v. 524 U.S. Ellerth, 775 524 (1998), U.S. 742 and Burlington (1998), generally referred to as the Faragher/Ellerth affirmative defense. 26 & 27.) (Docs. That defense insulates an employer who exercises reasonable care to prevent and correct any harassing behavior where a plaintiff unreasonably fails to take advantage of the preventative or summary judgment sought, the corrective was court initially did offered. 1 opportunities not granted reach the on the Because first applicability ground of the Faragher/Ellerth affirmative defense, Moser, 459 F. Supp. 2d at 420, which Defendants summary judgment. urge now on their renewed motion for (Docs. 64 & 65.) On November 17, 2008, the court entertained oral argument on the renewed subsequently motion submitted for summary court-ordered judgment, the supplemental parties briefing (Docs. 79 & 81-82), and the matter is ready for decision. 1 To prevail on the Faragher/Ellerth affirmative defense, an employer must show by a preponderance of the evidence that (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765. 3 B. Facts Defendant MCC Outdoor is a Georgia corporation that does business in North Carolina as Fairway Outdoor Advertising of the Triad ( Fairway ). Communications (Doc. Company, & 2 LLC 10; Doc. ( Morris parent company of MCC Outdoor, L.L.C. 71 at 1.) Morris Communications ) (Doc. 22.) is the Defendant Shivers Trading & Operating Co., is a privately held corporation with no parent corporation (Doc. 23) and appears to be the parent company of Morris Communications (Doc. 71 at 1; Doc. 72, Ex. 11 at 119-20). 2 Eddie Jones, Fairway s sales manager, hired Moser, who began working as a sales representative in Fairway s Greensboro office on July 9, 2003. (Doc. 72, Ex. 3 ¶ 3.) Moser reported to Jones, who in turn reported to Dan O Shea, the office general (Id., Ex. 3 at ¶ 4.) manager. 2004. Moser was discharged on June 30, (Id. Ex. 3 at ¶ 3.) The facts leading up to Moser s termination have been set out by this decisions. 634. court and the Fourth Circuit in the two prior See Moser, 459 F. Supp. 2d 415; Moser, 256 F. App x Suffice it to say that Moser at times contributed to the less than professional atmosphere at Fairway, Moser, 256 F. 2 The parties have not set forth in detail what role the parent companies allegedly played, although it is apparent that the antiharassment policy was distributed and administered by Morris Communications. 4 App x at 635, and neither side of this dispute is portrayed in a wholly favorable light. Moser s claim of hostile work environment sexual harassment at Fairway is predicated on alleged sexual harassment by her supervisor, Jones, and Wilkes and Tom Poe. Moser alleges a her co-workers, (Doc. 71 at 2-5.) course of conduct Kelly Phipps, George With respect to Jones, involving statements and (Id. at 2-7.) physical advances of a sexual nature towards her. In substance, Moser s testimony sets forth a series of sexual advances beginning concluding twelve in days January before and she February was of fired. 2004 The and conduct includes statements that Jones hoped she would like him because he was older and financially secure (Doc. 72, Ex. 1 at 171), that he wanted to lose twenty pounds so she would like him (id., Ex. 1 at 171), that he wanted to have sex with her (id., Ex. 1 at 126), that she was a hottie (id., Ex. 1 at 127), that he wanted and needed to see her every day (id., Ex. 1 at 128), that he wanted to see her in a bikini (id., Ex. 1 at 118-19), and that he would do [her] in a heartbeat (id., Ex. 1 at 126). Jones also allegedly took repeated opportunities to treat her in a sexual way, including hugging her, placing looking down her his blouse, slipping hand and on his her arm thigh eyeball[ing 5 around her waist, several times, her] up and down constantly. contends (Id., that Ex. after 1 at Fairway 91, 107-11, distributed & a 119-20.) May 25, She 2004, memorandum to employees advising of the availability of a tollfree hotline number for reporting sexual harassment, Jones acknowledged his conduct by telling her on several occasions you re going to get me for sexual harassment, aren t you? (Id., Ex. 1 at 167-68.) On June 18, 2004, Moser testified, Jones cornered her in his office, pushed her against the back of the door, pressed himself up against her, looked straight down her blouse, and then said, Serena, what do we need to do to get our relationship back on track? (Id., Ex. 1 at 89, 119-20, & 24344.) Moser was shaking like a leaf. (Id., Ex. 1 at 243.) She contends that Jones fired her twelve days later on June 30, 2004, because, among other reasons, he was worried she would report him for sexual harassment and she no longer fit in. (Doc. 71 at 14-15; Doc. 72, Ex. 1 at 98.) Jones denies ever making any sexual advances toward Moser or ever touching her inappropriately. at 157.) (Doc. 71; Doc. 72, Ex. 11 Affidavits from Fairway sales associates Steve Brandt, Michael Curtis, Greg Hines, Lee Isley, Sherry Lutz and former sales associate Angela Poole indicate that they never saw Jones acting inappropriately or engaging in any sexual touching or 6 other harassing including Moser. behavior with any female in company, (Doc. 65, Ex. 5 ¶ 6, Ex. 6 ¶ 10, Ex. 8 ¶ 10, Ex. 9 ¶ 5, Ex. 10 ¶¶ 6 & 8, Ex. 15 ¶¶ 4 & 6.) contains the affidavits from Accounting The record also Department Manager Kathy Gibbs, Executive Secretary Susan Mills, and the administrative assistant to the sales/marketing team Amy Spence stating the same. 7.) (Doc. 65, Ex. 7 ¶¶ 5-6, Ex. 11 ¶¶ 6, 7 & 9, Ex. 17 ¶¶ 5 & These co-employees were not present, however, during the alleged one-on-one encounters Jones had with Moser. With respect to her co-workers, Moser alleges that they made gender-based comments about her physical appearance (Doc. 72, Ex. 1 at 68), her intelligence (id., Ex. 1 at 50-51), and the fact that she was not married (id., Ex. 1 at 52-53), hit her on her buttocks with a water bottle (id., Ex. 1 at 134), indicated they wanted to have sex with her (id., Ex. 1 at 14748), and warned her not to walk so fast because her breasts were bouncing (id., Ex. 1 at 152, 157). Moser contends that shortly after Fairway distributed the May 25, 2004, memorandum about the new company hotline to report harassment, co-workers Wilkes and Poe inquired conduct. of her whether she intended to (Doc. 71 at 11; Doc. 72, Ex. 1 at 104.) report their She contends that the harassing conduct of all culminated in her firing on June 30, 2004. (Id. at 7.) 7 The Defendants paint a very different picture. They contend Moser was fired as a direct result of her workplace behavior, focusing primarily on three incidents in which her allegedly unprofessional behavior workplace. caused problems in the (Doc. 65 at 16-17.) The first of these incidents occurred on March 8, 2004, during a meeting with the Fairway sales staff. (Id. at 9.) At that meeting, Moser learned that another sales representative was calling on one of her prospects, Allen Tate, company, to sell Fairway=s advertising services. at 58-59.) a realty (Doc. 72, Ex. 1 Jones testified that Moser stormed out of our sales meeting and then stormed into my office, was visually mad, and lit into me. (Doc. 73, Ex. 6 at 66) O Shea testified to witnessing an absolute tantrum by Moser, complaining about Allen Tate, [and] just literally dressing [Jones] down. Ex. 11 at 58.) (Id., Afterwards, O Shea advised Jones not to ever let that happen again and that if an incident like that did happen again, he should write a reprimand of Moser to let her know in no behavior. uncertain terms that we will not tolerate that (Id., Ex. 11 at 58.) A second incident occurred on April 14, 2004, when Moser entered Jones office to allegedly complain[] bitterly about how stupid the company was and about her ongoing arguments 8 with co-employee George Wilkes. (Doc. 65, Ex. 2 at 104.) occurred at the end of their conversation is disputed. What Jones testified that Moser said [w]ell, f-ck you, Eddie, using an expletive, and walked out of his office (id., Ex. 2 at 105), while Moser testified that she said, [f]ine, you re getting on my nerves and walked out (id., Ex. 2 at 80). O Shea testified that he was in his office during the event and heard Moser utter an expletive toward Jones. (Doc. 72, Ex. 11 at 61.) According to O Shea, Moser also told Jones, you people are stupid. You people are cheap, to which Jones replied, [i]f you re not happy here, you might want to look someplace else. 11 at 63.) (Id., Ex. O Shea said that after the encounter, he went right into [Jones ] office, and instructed Jones to write her up. (Id., Ex. 11 at 61.) A written reprimand memorializing the March 8 and April 14 incidents was issued on April 19, 2004, and signed by both Jones and Moser. (Doc. 73, Ex. 9.) Defendants contend the written reprimand did not improve Moser s behavior. (Doc. 65 at 10.) The final incident allegedly occurred on June 30, 2004. (Id.) Jones contends that the previous day Moser complained to him that the company was stupid. (Id.) According to O Shea, on the morning of June 30 he was forced to interrupt a telephone call with his immediate supervisor, Fairway s President, because 9 Moser was arguing so loudly with Wilkes that O Shea had to step out of his office to direct her to stop. 68-69.) (Doc. 73, Ex. 11 at Jones testified that he was in his office that day and O Shea, who was on the phone to his boss, ran out and said what is going on? [and that] Serena had obviously been B was upset and yelling at somebody, enough to make [O Shea] go out of his office. (Id., Ex. 6 at 118.) Jones heard Moser and saw O Shea exit his office but could not make out what she said. (Id., Ex. 6 at 118.) When Jones approached O Shea to discuss an alleged incident with Moser from the day before (the details of which neither Jones nor O Shea have disclosed), O Shea, upon hearing of yet insubordination, immediately. another decided instance to of terminate what Moser s he deemed employment (Id., Ex. 11 at 69-70.) Defendants also cite as reasons for Moser s termination the constant instigated conflict[s] by with [Moser], other her staff members condemnation of that were management [insubordination], her disruptive disposition, her failure and refusal to cooperate with others and her rude, arrogant and condescending treatment of others. (Doc. 65 at 10-11.) They point to Moser s admissions that she got into arguments with other employees, had personality clashes with other employees, and called other employees names such as fat, chubby and 10 baldy. (Doc. 65 at 7-8 & Ex. 1; Doc. 72, Ex. 1 at 70-77.) They also identify a meeting between Moser and Beverly Smith, Fairway s accounting manager, in which Smith told Moser that her behavior was inappropriate and that other employees could not concentrate because she was frequently (Doc. 65 at 8 & Ex. 16 && 7-10.) loud and distracting. Smith stated by affidavit that Moser refused to discuss the issue with her and left Smith=s office abruptly before Smith had finished speaking. 16 & 10.) (Id., Ex. Moser confirmed that the meeting occurred but claims she was highly offended by Smith s statements concerning her behavior in the office. 3 In addition, employees that (Id., Ex. 3; Doc. 72, Ex. 1 at 76.) Defendants Moser was present testimony obnoxious and from other abrasive, had, unprovoked, pinched one employee=s ear so hard that it bled for several hours (Doc. 65, Ex. 5 & 4), was very confrontational, loud, moody, angry and annoying and disruptive to [the] office atmosphere (id., Ex. 10 & 4), and was generally unprofessional in the office (id., Ex. 18 & 7). alleged disputes to what they Defendants attribute Moser s deem her reaction to company policy relating to commissions and essentially a free-for-all competition amongst employees for accounts. 3 (Id. at 7.) Moser also says that Smith engaged in discussions about sex, noting to Moser (in front of Jones) that once Moser turned 50 she would no longer be interested in sex. (Doc. 72, Ex. 3 ¶ 37.) 11 Moser characterizes her conduct as within the office norm (which she says involved much banter and kidding, and even foulmouthed comments, amongst co-workers), behavior was the cause of her discharge. 74, 83, 163-64.) and disputes that her (Doc. 72, Ex. 1 at 73- She acknowledges participating in sometimes juvenile office conduct such as squirting a co-worker with a water gun and bantering with less than flattering nicknames, such as others fat, used as chubby, well) and (id., baldy Ex. 1 (which at 70-77), terms but she says points to testimony of other employees who never heard her scream or yell, as alleged (Doc. 73, Ex. 16 at 30-33 & 42, Ex. 1 at 35-44, & Ex. 14 at 34-35). She also characterizes the March 8 and April 14 incidents differently and denies that the June 30 incident occurred at all. The March 8 incident, she argues, was a falling-out with [Jones] on the Allen Tate account. (Doc. 72, Ex. 1 at 58.) She denies that she yelled at Jones but concedes she did raise her voice. (Id., Ex. 3 ¶ 20.) She claims she left the meeting because she was concerned about being late for an appointment and had to use the restroom, and she denies having stormed out of the meeting or into Jones office. ¶ 21.) 12 (Id., Ex. 1 at 87, Ex. 3 She argues that on April 14, she never used an expletive; rather, she contends as noted earlier that she said only that [y]ou=re getting on my nerves. (Id., Ex. 1 at 80.) Moreover, she denies ever using inappropriate language toward Jones and claims she never called the company or its management stupid. (Id., Ex. 1 at 76-77, Ex. 3 ¶ 21.) She does admit, however, to signing the reprimand for this and the March 8 incident. 4 Ex. 1 at 80-81.) The reprimand indicated that any (Id., further incidents of inappropriate or unprofessional behavior would result in Moser s termination. (Doc. 73, Ex. 9.) Moser also raises serious questions as to the veracity of O Shea s sworn testimony as to the April 14 incident. at 18-22; Doc. 72, Ex. 11 at 67.) (Doc. 71 Jones testified that the incident occurred between nine and eleven in the morning, (Doc. 73, Ex. 6 at 109), yet Fairway s records indicate that O Shea, who testified that he was present, was absent from the office from April 12-14, 2004. receipt shows O Shea (Doc. 72, Exs. 8 & 10.) rented a car from the A rental Wilmington-New Hanover (North Carolina) Airport at 2:27 p.m. on April 14, 2004. (Doc. 72, Exs. 8 & 9.) O Shea s supplemental affidavit states 4 Moser claims that the reprimand she signed had no reference to an expletive and it was not until later that she realized that Fairway claimed that she had cursed. She sought to write a response to the reprimand but claims that Jones responded, I don t f-cking care what you do, using an expletive. (Doc. 72 at 81.) 13 that he was vacationing at Wrightsville Beach with his family during this period but had to return to Greensboro on April 14, 2004, for work-related reasons. (Doc. 73, Ex. 13 ¶ 6.) O Shea contends that he drove directly from the car rental facility to his Greensboro office, a trip that admittedly took him two hours and forty-five minutes. (Id., Ex. 13 ¶ 7.) By his own account, the earliest O Shea physically could have been in Greensboro was a little after 5 o clock in the evening. As to the events that led to her termination on June 30, 2004, Moser says she walked into a meeting that day during which Jones terminated her. (Doc. 72, Ex. 1 at 98.) precipitating date. events that Defendants claim She denies the occurred on that She specifically denies yelling at Wilkes and kn[o]w[s] for a fact that [she] did not get into any argument with anyone or cause any commotion in June, 2004. II. (Id., Ex. 3 & 30.) ANALYSIS A. Standard of Review Summary judgment is appropriate where an examination of the pleadings, affidavits, demonstrates that no and other genuine proper issue as to discovery any materials material fact exists, thus entitling the moving party to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment bears 14 the burden of initially demonstrating the absence of a genuine issue of material fact. burden is met, demonstrate trial. a Celotex, 477 U.S. at 323. the non-moving genuine issue party of must material then fact If this affirmatively which requires Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a fact finder to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817 (4th Cir. 1995). The court considering a discrimination issue. is cautioned motion cases, for to be particularly summary because judgment motive is careful in often when employment the critical Ballinger v. N.C. Agr. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987). In addition, the non-moving party is entitled to have the credibility of [her] evidence as forecast assumed, [her] version of all that is in dispute accepted, all internal conflicts in it resolved favorably to [her], the most favorable of possible alternative inferences from it drawn in [her] behalf; and finally, to be given the benefit of all favorable legal theories invoked by the evidence so considered. Charbonnages de Fr. v. Smith, 597 F.2d 406, 414 (4th Cir. 1979); 15 see Metric/Kvaerner Fayetteville v. Fed. Ins. Co., 403 F.3d 188, 197 (4th Cir. 2005). B. Hostile Work Environment Claim Plaintiff s remaining claim is one traditionally known as hostile work environment, which Defendants contend is barred by the Faragher/Ellerth affirmative defense as a matter of law. (Docs. 64, 65 & 74.) To prevail on this claim, a plaintiff employee must show conduct that was (1) unwelcome, (2) based on the employee s gender, (3) sufficiently pervasive or severe to alter the conditions of employment and to create a hostile work environment, and (4) imputable to the employer. Caldwell v. Johnson, 289 F. App x 579, 585 (4th Cir. 2008) (quoting Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 266 (4th Cir. 2001)). Moser alleges hostile work environment harassment by both her supervisor and her co-workers. The parties do not appear to dispute whether the conduct by Jones and her co-workers was unwelcome and based on Moser s gender (and so those elements are assumed for purposes of this motion), and the Fourth Circuit s opinion held that the forecasted evidence supports the existence of the third element. Moser, 256 F. App x at 642. Thus, the only element at issue for Moser s prima facie cases of hostile work environment is whether 16 the conduct by Jones and her co-workers is imputable to the Defendants. 1. Supervisor-Created Hostile Work Environment Harassment and Application of Faragher/Ellerth Affirmative Defense The Supreme Court has held that agency principles apply to the determination of whether discriminatory conduct is imputable to an employer. Ellerth, 524 U.S. at 757-765. Where a victimized employee suffers from an actionable hostile workplace created by her supervisor with immediate, or successively higher, authority over her, the employer is presumptively liable vicariously. (2006). Id. at 765; Howard v. Winter, 446 F.3d 559, 565 Whether the supervisor s alleged harassment is aided in the agency relationship depends on the actual authority of the supervisor decisions. F.3d 277, over the employee to make tangible employment Hill v. Lockheed Martin Logistics Mgm t Inc., 354 286-87 (4th Cir. 2004) (en banc). In assessing whether an employer is strictly liable, the Supreme Court has divided the universe of supervisor-harassment claims according to the presence or absence of an official act. Police v. Suders, 542 U.S. 129, 150 (2004). Pa. State In Ellerth, the Court stated: [W]e can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the 17 harassment: when a supervisor takes a tangible employment action against a subordinate. . . . A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. . . . Whatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action against a subordinate. 524 U.S. at 760-63. holding, the supervisor s action, and In the precise terms of the Supreme Court s affirmative harassment the defense is unavailable when in culminates employer supervisor s harassment. is a employment held tangible strictly liable the for the Id. at 765 (emphasis added); Faragher, 524 U.S. at 808 (emphasis added); Brown v. Perry, 184 F.3d 388, 394 (4th Cir. 1999); see also 1 B. Lindemann & P. Grossman, Employment Discrimination Law 1353-54 (4th ed. 2007) (characterizing employer liability as automatic ). In this case, Defendants argue that Jones harassment could not have culminated in a tangible employment action and, therefore, they can avoid liability by asserting the affirmative defense. For the reasons set forth below, the court concludes that genuine issues of material fact preclude Defendants from entitlement to the defense as a matter of law. That Jones was Moser s supervisor (Doc. 65 pp. 14-15; Doc. 71 at 3), that Moser was discharged (Doc. 64 at 11; Doc. 71 at 18 2), and that Moser s discharge was a tangible employment action (Doc. 65 at 15; Doc. 71 at 13) are undisputed. However, the parties disagree as to whether Jones or O Shea made the decision to fire Moser and, as a corollary of that inquiry, whether Jones termination. whether alleged harassment culminated in Moser s These determinations inform the ultimate issue of the Defendants affirmative defense. a. may assert the Faragher/Ellerth (Doc. 64 at 16-18; Doc. 71 at 13-17.) Whether Jones Was Principally Responsible for the Decision to Terminate Moser To impute liability to the employer in a supervisor-created hostile that for, work the or environment harassing the an supervisor actual employment action. claim, employee demonstrate principally was must responsible decisionmaker behind, the tangible Hill, 354 F.3d at 288-89 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151-52 (2000)). Defendants decision-maker They argue contend in that O Shea, Moser s if not Jones, termination. O Shea was was (Doc. the 65 responsible principal at for 16-17.) Moser s termination and Moser never reported any harassment by Jones to him, then any harassing conduct by Jones could not have culminated in her discharge because Jones had no part in the termination decision. (Id. at 16-17.) 19 Defendants contend that the June 30 incident, together with the two prior incidents of insubordination for which she was reprimanded and her generally disruptive conduct, caused O Shea to agree[] with Jones that it was time to end [Moser s] employment, and that O Shea was the one who ultimately made the firing decision. (Id. at 16.) Moser argues that Jones was principally responsible for her discharge. (Doc. 71 at 12-13.) She contends that it was Jones harassing conduct, Moser s refusal to play along so as to fit in, and Jones mounting fear that she would report his harassment that culminated in Jones decision to terminate her employment. (Id. at 13-15.) In support, she notes that Jones hired her and admitted that he had authority to fire her. 73, Ex. 6 at 118, 120.) (Doc. She also points to his own testimony that O Shea relied on [him] to run the sales department (id., Ex. 6 at 74-75) and the fact Jones was the only supervisor who signed her April 19, 2004, written reprimand (id., Ex. 9) and her July 1, 2004, letter of notification of termination (id., Ex. 7). that his Her evidence is consistent with Jones acknowledgment duties and responsibilities were evaluate, coach and monitor the sales staff. 19-20.) to hire, train, (Id., Ex. 6 at She also points to Jones= testimony that she was on thin ice (id., Ex. 6 at 118) just prior to her termination (suggesting he had the ability to fire her) and his statement 20 that I made a mistake not firing her [Moser] when she said that to me that day (id., April 14, 2004, incident. Ex. 6 at 118) in reference to the According to Moser, Jones told her that he would have fired her earlier but for the fact that he cared for her. (Doc. 72, Ex. 1 at 242-243.) Jones testified that after meeting with O Shea on June 30, 2004, [w]e made the decision. Dan made the decision, and that was it (id., Ex. 11 at 118) (emphasis added). In contrast, O Shea indicated that I truly don=t manage the sales department. That=s Eddie Jones department. (Doc. 71; Doc. 72, Ex. 11 at 29.) Finally, and perhaps most importantly, is Moser s version of her termination. She claims she was called into O Shea s office and Jones told her it was her last day because she was no longer happy here, no longer fit in, and could not sell because she was given 85 percent of her accounts. 1 at 98.) (Doc. 72, Ex. O Shea, she says, replied, Eddie, that is not true, referring to his statement about her lack of sales ability. (Id., Ex. 1 at 98.) O Shea then told her, according to Moser, that she no longer fit in anymore (id., Ex. 1 at 98), which is consistent with O Shea s testimony that they told her they felt she no longer enjoyed being here (Doc. 73, Ex. 11 at 70). Moser says that O Shea then looked to Jones and said, I back up Eddie. He s the sales manager, whatever decision he makes, I 21 back him up. (Doc. 72, Ex. 1 at 98) (emphasis added); see also Moser, 256 F. App x at 638. The record contains conflicting evidence as to who made the final decision to fire Moser -- Jones points to O Shea for having made the decision, while there is evidence that O Shea points to Jones decision. as being principally responsible for the Although O Shea is the general manager and Jones the supervisor of Fairway s Greensboro office, their nominal rank and formal decision. analyzed titles The under are not imposition agency determinative of liability principles, of under Ellerth, 524 who made Title the VII U.S. at is 754; Faragher, 542 U.S. at 790-92, and the critical inquiry is who was principally responsible for, or the actual decision-maker behind, an employment decision. Hill, 354 F.3d at 289. The Fourth Circuit explained that [w]hen a formal decision-maker acts merely as a cat s paw for or rubber stamps a decision, report, or recommendation actually made by a subordinate, it is not inconsistent decision-maker contested or to say the employment that one the subordinate principally decision. Id. is the responsible at 290. actual for the However, a subordinate who has no supervisory or disciplinary authority and who does not make the final or formal employment decision should not be deemed a decision-maker 22 for purposes of attributing liability to an employer simply because he had a substantial influence on the ultimate decision or because he has played a role, even a significant one, in the adverse employment decision. Id. at 291. Viewing the evidence in the light most favorable to Moser as the non-moving party, the court finds that she has created a genuine issue of material fact as to whether Jones or O Shea was principally responsible for the decision to fire her. Id. at 291 (holding that in order to survive summary judgment on a Title VII motivations discrimination of a claim subordinate based employee, on an the discriminatory aggrieved employee must come forward with sufficient evidence that the subordinate employee possessed such authority as to be viewed as the one principally responsible decisionmaker for the for the employer ); decision see or Johnson the v. actual Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 511 (11th Cir. 2000) (holding that where the parties present conflicting evidence regarding the identity of the decision-maker who took the tangible employment action, the parties have created a classic dispute of a material fact ). b. Whether the Alleged Harassment Culminated in Moser s Termination As a corollary to who made the decision to terminate Moser, Defendants challenge the connection 23 between any alleged harassment and Moser s termination. Defendants argue that even if one assumes that Jones was principally responsible for firing Moser, they are entitled to assert the Faragher/Ellerth affirmative defense because Moser cannot demonstrate that Jones alleged harassment culminated in Moser s termination. (Doc. 65 at 16-18.) The case law indicates that culminated in the context of imputing employer liability under contemplates a causal relationship. Inc., 159 F.3d plaintiff s 177, 182 termination did (4th not Faragher and Ellerth Lissau v. S. Food Serv., Cir. 1998) result (noting from a that if refusal to submit to a supervisor s sexual harassment, the employer may assert the Faragher/Ellerth affirmative defense) 5 ; see Suders, 542 U.S. case, at that unavailable 140-41 the when (concluding, in Faragher/Ellerth a supervisor s a constructive affirmative conduct discharge defense is precipitates the tangible employment action); Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006) ( The word culminate requires that the tangible employment action be 5 linked to the supervisor s The concurring opinion questioned this articulation of result[ing] from, indicating that the Faragher/Ellerth defense is unavailable in a broader range of circumstances where the supervisor takes a tangible employment action against an employee as part of the harassment or if the termination was connected to the harassment. Lissau, 159 F.3d at 184 (Michael, J., concurring in part and concurring in the judgment). 24 discriminatory harassment. ); Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 959-60 (8th Cir. 2004) (noting that even if a tangible employment action occurred, the employer may still assert the affirmative defense if the tangible employment action is unrelated to the alleged harassment); Church v. Maryland, 180 F. Supp. 2d 708, 728-29 (D. Md. 2002) ( [t]o establish that the harassment plaintiff must culminated establish in a a tangible causal employment connection action, between the harassment and the action ) (quoting Jaudon v. Elder Health, Inc., 125 F. Supp. 2d 153, 161 (D. Md. 2000)). Defendants contend that the court s dismissal of Moser s quid pro quo, retaliation, and discriminatory discharge claims predicated upon the same pre-termination conduct and the Fourth Circuit s affirmance of that determination on appeal bars any finding of a causal relationship. In other words, Defendants contend, Plaintiff has litigated and lost her claims that her termination was the result of any unlawful conduct. alternative, legitimate, they contend that non-discriminatory they reason have for In the demonstrated Moser s a termination based on her performance. It is true that a termination, in order to be related to the alleged harassment, is ordinarily a result of either quid pro quo or retaliatory discrimination. 25 Booker T. Washington, 234 F.3d comes in tangible at 508 two (noting forms: employment that [g]enerally harassment action that sexual does not (traditionally harassment result referred in to a as hostile work environment harassment), and harassment that does result in a tangible employment action (traditionally referred to as quid pro quo harassment) (emphasis in original)). In Ellerth and Faragher, however, the Supreme Court eschewed the labels quid pro quo and hostile work environment in the context of assessing employer liability in favor of an analysis of whether (1) culminated tangible in a to conditions. 6 suffered employment action alter harassment action, existed, constructively the an or (2) if harassment employee s that no was working Ellerth, 524 U.S. at 761-63, 765; Faragher, 524 U.S. at 790, 807. work employee tangible employment sufficient hostile the Further, the Court recently found that a environment claim discharge could bar the defense. culminating in a constructive Suders, 542 U.S. at 141. Moser s complaint alleged quid quo pro sexual harassment, claiming that her termination resulted from a refusal to submit 6 While within the broad category of workplace sexual harassment prohibited by Title VII there are various types of claims treated distinct from each other analytically, the Supreme Court has cautioned that quid pro quo and hostile work environment terminology is useful only in making a rough demarcation between cases in which threats [to take tangible adverse employment action against the target of the harassment] are carried out and those where they are not or are absent altogether. Ellerth, 524 U.S. at 751. 26 to her supervisor s demands. (Doc. 2 at 9.) She also alleged discriminatory discharge as a result of alleged discriminatory (Id. at 10-12.) practices in violation of Title VII. Both the quid pro quo and discriminatory discharge claims were dismissed for procedural default, however. Moser, 459 F. Supp. 2d at 420. Those dismissals have been affirmed on appeal. 7 App x at 642. Moser s complaint also Moser, 256 F. alleged that her termination was in retaliation for her alleged complaints about Defendants harassment. (Doc. 2 at 9-10.) However, at summary judgment, she only offered evidence that she complained about the conduct of George Wilkes, her co-worker, and not the conduct of Jones or of any other supervisor. The district court dismissed her retaliation claim on the ground that Title VII did not prohibit the conduct by Wilkes about which she complained. Moser, 459 F. Supp. 2d at 422-23. affirmed on appeal as well. That determination has been Moser, 256 F. App x at 642-44. While the issue is novel and close, the court concludes that these prior dismissals do not bar Moser s current attempt to establish that the alleged supervisor harassment culminated in her termination. Under the law of the case doctrine, 8 a court 7 Moser did not challenge the dismissal of the discriminatory discharge claim on appeal. Moser, 256 F. App x at 643 n.3. 8 [Law of the case rules] govern within a single action . . . [and] do not involve preclusion by final judgment; instead, they regulate judicial affairs before final judgment. 18B Wright, Miller & Cooper, 27 has the discretion to preclude a party from re-litigating an issue previously decided in the same case. See, e.g., Pit River Home & Agric. Co-Op. Ass n v. United States, 30 F.3d 1088 (9th Cir. 1994) ( The law of the case is a discretionary [doctrine] created during to the maintain course of consistency a single and avoid continuing reconsideration, lawsuit, of decisions that are intended to put a matter to rest. ). those Here, with respect to those claims dismissed for procedural default, no issue of fact was actually decided for purposes of the rule, and those dismissals should not serve to bar her now. United States v. Lentz, 524 F.3d 501, 528 (4th Cir. 2008). As far as the supervisor court can tell, Moser s current claim of harassment leading to her termination was never raised in the context of her dismissed claims, and no finding of fact has been made as to it. 9 Inasmuch as Moser seeks no termination damages Federal Practice and Procedure § 4478 at 638-40 (2nd ed. 2002). In contrast, issue preclusion bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment. Taylor v. Sturgell, 128 S. Ct. 2161, 2171 (2008) (internal quotation marks omitted). The doctrine only applies where (1) the identical issue (2) was actually litigated (3) and was critical and necessary to a (4) final and valid judgment (5) resulting from a prior proceeding in which the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue. McHan v. Comm r, 558 F.3d 326, 331 (4th Cir. 2009). 9 Rather, in her initial brief in opposition of summary judgment, Moser argued in connection with her supervisor-created hostile work environment claim that Jones fired her because she would not succumb to his advances and he was worried she would report him for sexual harassment. (Doc. 48 at 13.) The district court never reached this 28 (those claims having been dismissed) but only hostile workplace damages, the court concludes that she is not precluded from showing that her termination was causally-related to Jones alleged harassment for the sole purpose of imputing his actions to the Defendants. Faragher and Ellerth in no way indicate that a variation from the normal requirements of Lissau, 159 F. 3d at 182 n.*. Rule 56 is appropriate. On motion for summary judgment, the court is bound to accept the non-movant=s version of all disputed facts evidence. and assume the credibility Metric/Kvaerner, 403 F.3d at 197. of the forecasted In this case, the court concludes that Moser has presented a genuine issue of material fact as to whether Jones alleged harassment culminated in her termination. For example, as noted in the extensive factual discussion, she alleges that Jones made several passes at her that she rebuffed, including one less than two weeks before her termination when Jones allegedly cornered her in his office, pushed her against the back of the door, pressed himself up against her, looked straight down her blouse, and said, Serena, what do we need to do to get our relationship back on track? (Doc. 72, Ex. 1 at 89, 119-20, & 243-44.) She also argument in dismissing the claim on the grounds, now reversed, that Jones conduct was not sufficiently severe or pervasive. Moser, 459 F. Supp. 2d at 421. 29 contends Jones fired her twelve days later on June 30, 2004, because, among other reasons, he expressed concern she would report him for sexual harassment and she no longer fit in. (Doc. 71 at 14-15; Doc. 72, Ex. 1 at 98.) these allegations, they are a plaintiff genuine presented to permit Moser to Booker T. Washington, 234 F.3d at 511 proceed at this stage. (holding sufficient While Jones denies issue of evidence material that she fact existed rebuffed the where sexual advances of a supervisor who participated in a decision to move the television slot assigned to her, while defendants produced evidence that another supervisor made the personnel decision based on performance-related criteria); Burrell v. Star Nursery, Inc., 170 F.3d 951, 956 (9th Cir. 1999) (remanding case for a determination of the causation question where there was evidence that termination could have been a result either of plaintiff s own misconduct or the culmination of her rejection of her supervisor s sexual advances); Bennett v. Progressive Corp., 225 F. Supp. 2d 190, 204-05 (N.D.N.Y. 2002) (finding factual dispute for jury determination over issue of culmination where plaintiff alleged she was terminated for lodging a complaint about her supervisor s harassing conduct but defendant presented evidence that she Wright v. was terminated Blythe-Nelson, for No. violating Civ. 30 A. the alcohol 399CV2522D, policy); 2001 WL 1012702, at *4 (N.D. Tex. Aug. 15, 2001) (holding evidence of an employee s refusal to engage in sexual intercourse with supervisor and her termination four months later was sufficient to preclude summary judgment on whether her termination was the culmination of the alleged harassment). This is relationship simply not a case between the where alleged the absence any conduct discriminatory of and Moser s termination can be demonstrated beyond genuine dispute, especially given Jones direct involvement in both the alleged discrimination, as extensive, and the termination Cf. Hill, 354 F.3d at 295 (holding that where employee process. failed forecasted to contend that final reprimand was motivated by discriminatory animus, employee s evidence was insufficient to support finding that immediate supervisor was principally responsible for termination decision made by employer s higher level management); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 877-78 termination was (9th Cir. unrelated 2001) to any (finding harassment that employee s where employee walked off job after heated argument (without any evidence it was related to alleged workplace discrimination) with a manager and was fired for leaving work before his shift ended); Frederick v. Sprint/United Mgm t Co., 246 F.3d 1305, 1312-13 (11th Cir. 2001) (affirming summary judgment for employer where 31 plaintiff between failed the to show harassment sufficient and the evidence tangible of causal employment link action); Johnson v. West, 218 F.3d 725, 731 (7th Cir. 2000) (finding no causation between harassment and termination where plaintiff was fired pursuant to a full administrative investigation); Fierro v. Saks Fifth Ave., 13 F. Supp. 2d 481, 491 (S.D.N.Y. 1998) (finding that dismissal of retaliation claim precluded a finding that the tangible employment action was related to the alleged harassment). Defendants argue non-discriminatory that reason they for have presented terminating a Moser s legitimate, employment and, under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), are entitled to prevail on the issue of culmination. 10 McDonnell Douglas applies The court need not decide whether to the culmination determination because, even if such burden-shifting were to apply, Moser has presented evidence that the Defendants reason is pretextual. 10 Moser appears to accept that the burden-shifting analysis applies, though neither party has cited to any case applying it in the context of determining culmination for purposes of asserting the Faragher/Ellerth affirmative defense, and there is some authority to the contrary. Cf. Booker T. Washington, 234 F.3d at 510-11 (rejecting application of the burden-shifting framework in deciding whether to But see EEOC, allow the Faragher/Ellerth affirmative defense). Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors in the Wake of Ellerth/Faragher 6 (June 18, 1999), available at http://www.eeoc.gov/policy/docs/harassment.html#IVC, (indicating that burden-shifting analysis applies if employer produces evidence of non-discriminatory motive). 32 St. Mary s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993) (holding that the presentation of a non-discriminatory reason merely satisfies a defendant s burden of production and rebuts the presumption raised by the plaintiff s prima facie case). While it is uncontested that Moser was reprimanded for the March 8 and April 14 incidents, Fairway did not terminate her at that time, and a key question is Fairway s alleged justification for terminating Moser as of June 30, 2004. The credibility of the Defendants version of the events on June 30 turns on the testimony of Jones, the alleged protagonist who admittedly was unable to testify to the details of what happened on that date, and on the testimony of O Shea, which a reasonable jury could discredit in light of his troubling claim to have been present at the April 14 incident despite substantial evidence to the contrary. Reeves, 530 U.S. at 147 (finding that the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose ); Fuentes v. Perskie, 32 F.3d 759, 764 n.7 (3d Cir. 1994) (noting that where a witness testimony is called into doubt on one point, a jury will be free to disregard his testimony in whole or in part). Given the conflicting testimony about a the office environment, reasonable jury could also credit Moser s denials of the accusations against her and her 33 claim that Jones renewed his hostile activity a little more than a week before her termination. 11 Thus, Moser has come forward with evidence that not only is the Defendants proffered nondiscriminatory decision was reason for firing her false, pretext for discrimination. but Jiminez that the v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995). Because material factual issues exist as to whether Jones or O Shea was principally responsible for the decision to fire Moser and, consequently, whether her termination was the culmination of Jones alleged harassment, Defendants motion for summary judgment on Moser s supervisor-created hostile work environment harassment claim is denied. 2. Co-Worker Hostile Work Environment Harassment Unlike the supervisor-created harassment context where the aided in the agency relation standard applies, an employer is liable for should have sexual known harassment about the by a co-worker harassment 11 and if it failed knew to or take To be sure, Plaintiff s mere denial of conduct does not, in itself, create a sufficient fact issue as to the legitimacy of Defendants reason for her termination. Barnett v. City of Greensboro, No. 02-cv-366, 2002 WL 32086528, at *7 (M.D.N.C. Nov. 7, 2002). This is not a case, however, where there is only a weak issue of fact as to whether the employer s reason was untrue and abundant and uncontroverted independent evidence that no discrimination occurred. Reeves, 530 U.S. at 148. 34 effective action to (internal quotation it. 12 stop marks Howard, omitted). 446 [A]n F.3d employee at 565 claiming harassment by a co-worker bears significant responsibility in notifying the employer. Id. (quoting Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001) (noting that [l]ittle unless the can victim be done first requirement aids in encouraging forethought to correct blows fulfilling by the whistle Title VII's basic and saving employers The first inquiry is actual notice. cautioned, enforcing harassment and [t]he an unless law employer the against cannot employee harassment be makes 567 (internal quotation marks omitted). complained to it ). This policy action of by As the Fourth Circuit O Shea that is expected a not to concerted inform the employer that a problem exists. she on behavior Faragher, 524 U.S. at 807. objecting employees. has [harassing] selfcorrect effort to Howard, 446 F.3d at Here, Moser claims that co-worker demeaning her intelligence were offensive. Wilkes comments (Doc. 71 at 2-3.) She also says she complained to Jones that Wilkes would ask why she was not married. (Doc. 72, Ex. 1 at 52-53.) This court has already found, and the Fourth Circuit affirmed, that Moser s 12 The Supreme Court observed that Ellerth and Faragher expressed no view on the employer liability standard for co-worker harassment. Suders, 524 U.S. at 143 n.6. 35 complaints about Wilkes did not Moser, 256 F. App x at 644. concern protected conduct. The possibility that a contrary finding should be made is therefore foreclosed. Absent actual notice, an employer cannot rely on a see no evil, hear no evil defense, however. Ocheltree v. Scollon Prods., Cir. Inc., 335 F.3d 325, quotation marks omitted). 334 (4th 2003) (internal Knowledge of co-worker harassment can be imputed to an employer if a reasonable person, intent on complying with harassment. Title Id. VII, would Constructive have known knowledge of about the co-worker harassment may be charged when a defendant fails to provide reasonable procedures for victims to register complaints. It is undisputed that Fairway had in place a Id. company Employee Harassment Policy, which prohibited harassment and provided a reporting process for suspected harassment that included a toll-free telephone number to contact the corporate human resources department in Augusta, Georgia. 1, Ex. 4.) prohibited (Doc. 65, Ex. The policy is robust in its declaration as to activities and appropriate avenues for reporting misconduct: EMPLOYEE HARASSMENT POLICY Morris Communications Company, LLC does not and will not tolerate harassment of our employees. The term harassment includes, but is not limited to, slurs, jokes and other verbal, graphic or physical conduct 36 relating to an individual s race, color, sex, religion, national origin, citizenship, age or disability. Harassment also includes sexual advances, requests for sexual favors, unwelcome or offensive touching, and other verbal, graphic, or physical conduct of a sexual nature, or if such conduct has the effect of unreasonably interfering with an affected person s work performance or creating an intimidating, hostile, or offensive work environment. Any employee that feels they have been harassed in any way by a supervisor, co-worker, customer, or vendor, or by an employee of a customer vendor, should notify his or her Department Head, Publisher, General Manager, Human Resources Manager or other designated individual immediately. All formal harassment complaints will be investigated and Morris complaint procedures will be initiated and followed. A formal report will be reviewed with the complaining employee after the investigation. When appropriate, disciplinary action will be taken. No supervisor or other member of management has the authority to suggest to any employee that the employee s continued employment or future advancement will be affected in any way by that employee s entering into (or refusing to enter into) any form of personal relationship with a supervisor or member of management. If an employee feels that a supervisor or member of management has acted inconsistently with this policy or that his or her complaint concerning a manager, supervisor, co-worker, customer or vendor, or an employee of a customer or vendor has not been thoroughly investigated, he or she should contact the Corporate Human Resources Department at 800-622-6358, extension 3787, or 706-823-37878. An employee will not be penalized for reporting such contact and it will be kept as confidential as possible. VIOLATIONS OF THIS POLICY WILL SUBJECT AN EMPLOYEE TO DISCIPLINARY ACTION UP TO AND INCLUDING IMMEDIATE DISCHARGE. 37 (Doc. 65, Ex. 1, Ex. 5.) policy upon her hiring. Moser acknowledged receipt of this (Id. Ex. 1, Ex. 5.) Further, on May 25, 2004, Fairway distributed a memorandum to employees that announced an additional avenue for reporting that included a confidential toll-free telephone hotline number administered by an outside company, as well as telephone and email contact information within the company. Ex. 6.) (Id., Ex. 1, The memorandum reiterated that the company does not permit retaliation of any kind for good faith reports of ethical violations. indicating (Id., Ex. 1, Ex. 6.) her receipt. (Id., Moser signed the memorandum, Ex. 1, Ex. 6.) Apart from Moser s comments about Wilkes which the court has previously addressed, there is no evidence that Moser ever employed any of these mechanisms, nor does she claim or provide evidence that the policy was not effectively enforced by the Defendants. 13 Cf. White v. BFI Waste Servs., LLC, 375 F.3d 288, 299-300 (4th Cir. 2004). On this record, Moser has failed to provide any basis from which a jury could reasonably conclude that Fairway should have 13 Though Moser testified that O Shea discouraged direct reporting without talking to him first because [p]eople make bad choices (Doc. 65, Ex. 1 at 104), and Kathy Gibbs testified that O Shea stressed that employees should bring problems to his attention before calling the hotline (Doc. 73, Ex. 1 at 30), there is no evidence that Moser refrained from reporting any claim for these reasons, or that she either tried to contact, or feared contacting, O Shea. 38 known about the alleged harassment of the co-workers. Absent is sufficient evidence to support a conclusion that Defendants knew of the alleged conduct but turned a blind eye to it. Nor is there a basis for imputing constructive knowledge of co-worker harassment to the Defendants. Accordingly, Defendants renewed motion for summary judgment as to Moser s claims of hostile work environment based on the conduct of her co-workers is granted. III. CONCLUSION For the reasons set forth above, IT IS HEREBY ORDERED that the Defendants renewed motion for summary judgment (Doc. 64) is GRANTED as to Moser s her co-worker hostile work environment claim and DENIED as to Moser s supervisor-created hostile work environment claim. /s/ Thomas D. Schroeder United States District Judge June 25, 2009 39
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