Opinion
No. 1:96-CV-3475A-JEC
September 23, 1999
ORDER
The above action is before the Court on the Magistrate Judge's Report and Recommendation [57] granting Defendant's Motion For Summary Judgment [44] as to plaintiff's federal Title VII claim of sexual harassment, dismissing without prejudice plaintiff's remaining state law claims, and denying Plaintiff's Motion For Summary Judgment [39]. Both plaintiff and defendant have filed objections [63, 61] to the Magistrate Judge's Report and Recommendation [57]. The Court has reviewed the record and concludes that the Magistrate Judge's Report and Recommendation [57] is received, in part, with approval; the Court, however, disagrees with the granting of defendant's summary judgment on that part of plaintiff's federal claim asserting actual knowledge by defendant as to the alleged acts of sexual harassment. Accordingly, the Court DENIES summary judgment on this ground, meaning that plaintiff may present her federal sexual harassment claim to a jury.
The Court adopts that part of the magistrate judge's Report and Recommendation denying defendant's Motion for Summary Judgment based on the statute of limitations (IIB) and denying plaintiff's Motion for Summary Judgment.
In granting summary judgment for the defendant on plaintiff's federal claim, the magistrate judge concluded, as an alternative ground for its decision, that plaintiff had not demonstrated that the harassing conduct in question was sufficiently frequent or severe to constitute an actionable claim of sexual harassment, under the standards set out in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) and Harris v. Forklift Sys., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Admittedly, there is no bright line test in distinguishing between merely crude and annoying behavior and behavior that is severe enough to alter the complaining employee's working conditions. Nevertheless, this Court cannot conclude, as a matter of law, that the conduct of co-employee Davis falls short of the severity and pervasiveness necessary to create a claim. Accordingly, a jury must decide whether Mr. Davis' conduct was sufficiently severe and recurrent to be actionable.
Second, the magistrate judge concluded that even if the above conduct was actionable, the plaintiff has not produced evidence sufficient to trigger liability by defendant for its employee's conduct. This Court concludes, however, that there is a disputed issue of material fact on this matter and that summary judgment should not issue. At the outset, the Court notes that this case involves allegations of harassment by a co-employee, Al Davis, not a supervisor. Accordingly, the principles of vicarious liability announced in Faragher v. City of Boca Raton, 118 S.Ct. 2257 (1998) and Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998), that are applicable to an employer when a supervisor sexually harasses an employee, do not control here. Nevertheless, Faragher and Burlington do not alter existing law that would allow an employer to be held liable on a direct liability theory when the employer has actual or constructive knowledge of the harassing behavior. Dees v. Johnson Controls World Services, Inc., 168 F.3d 417, 421 (11th Cir. 1999); accord Wilson v. Tulsa Junior College, 164 F.3d 534, 541 n. 4 (10th Cir. 1998).
The Court concurs with the magistrate judge's implicit finding that defendant cannot be imputed with knowledge of any harassment committed by other employees, such as Cosden or Cates.
An employer may be liable for the sexual harassing conduct of one of its employees under a constructive knowledge theory if the conduct was so overt that one can infer knowledge by the employer of the conduct. Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988) (citation omitted) (plaintiff must show that she complained to higher management of the problem or that the harassment was so pervasive that an inference of constructive knowledge arises). See Burlington, 118 S.Ct. at 2267; Faragher, 118 S.Ct. at 2284; and Henson v. City of Dundee, 682 F.2d at 905. This Court agrees with the defendant that plaintiff has not adduced evidence from which a reasonable person could infer constructive knowledge by the defendant employer of co-employee Davis' harassing behavior.
An employer may also be liable for the co-employee's harassing conduct if the employer had actual knowledge of. the harassing conduct and did not take appropriate remedial action upon becoming aware of this conduct. Huddleston, 845 F.2d at 904; Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir. 1999); cf. Fowler v. Sunrise Carpet Industries, Inc., 911 F. Supp. 1560, 1581 (N.D. Ga. 1996) ("The only issue to be decided, therefore, is whether Defendant Sunrise took prompt remedial action that was reasonably calculated to stop [the supervisor's] harassment of Sunrise employees."). Because corporate employers act only through their agents, the predominate question inhering in most allegations of actual knowledge is whether the agent who has been made aware of the harassing conduct is an appropriate agent to trigger attribution of this knowledge to the corporate employer. In providing an answer to this question, the case law has held that the company can be considered to actually know about the.: harassing conduct only when a member of higher management possesses the pertinent knowledge. See Kilgore v. Thompson Brock Management, Inc., 93 F.3d 752, 754 (11th Cir. 1996) (affirming grant of summary judgment to defendant where district court found, inter alia, that plaintiff's complaint to restaurant manager about harassment was not complaint to "higher management").
In this case, plaintiff has testified that she had two conversations about Davis' harassing conduct with B.J. Hope, the general manger of the defendant company. Although the testimony regarding the substance of these conversations is somewhat abbreviated, taking the evidence in the light most favorable to plaintiff, she has produced evidence that during the summer of 1993, Mr. Hope told her that she would not have to worry about Davis' behavior anymore. According to plaintiff, she had not initiated this conversation, but assumed that Mr. Hope was referring to Davis' sexual harassing behavior, as another incident of such behavior had occurred shortly before Mr. Hope had come by to see her. The Court concludes that a reasonable jury could make the same inference. Further, according to plaintiff, however, Davis' behavior did not cease, but instead became worse after this conversation with Mr. Hope. Plaintiff also testifies that she had another conversation with Mr. Hope a few months later in which she brought up Davis' behavior. According to plaintiff, although denied by Mr. Hope, Mr. Hope was dismissive of plaintiff's concerns and told her that, as an attractive woman, she would simply have learn to cope with the kind of attention that the Al Davises of the world might visit on her.
The above evidence is sufficient to allow a reasonable jury to conclude that Mr. Hope knew about Davis' harassment and that, once on notice, he did not take appropriate remedial action. Further, as the general manger and boss of the entire dealership, Mr. Hope clearly occupied the ranks of higher management. Accordingly, plaintiff has presented sufficient evidence to allow her claim to go to a jury on the issue of defendant's actual knowledge of Davis' harassing behavior.
The only person higher in rank than Mr. Hope was the owner, Mr. Strother, who was often absent from the workplace.
The Court concurs with defendant that Mr. Barnett, the other member of the two person team at the "note" lot where plaintiff worked, was not a member of higher management, whether or not he is considered to be a supervisor or a coworker of plaintiff.
Defendant argues, however, that because plaintiff did not follow the complaint policy adopted by the company, she cannot argue that her communication to Mr. Hope caused the company to have actual knowledge of the harassing behavior. Specifically, defendant argues that the policy required an employee to bring complaints of sexual harassment to the attention of the owner of the company, Mr. Strother; defendant argues that, by going instead to the general manager, Mr. Hope, plaintiff did not comply with the policy and cannot impute knowledge of the harassment to the company. Plaintiff argues, however, that the policy did allow her to go to the general manager with he complaint. Moreover, plaintiff argues that an employer cannot eviscerate the law regarding actual knowledge by a member of higher management merely by removing higher management from the chain of command in a complaint. procedure.
Taking plaintiff's legal contention first, it is true that this matter potentially presents some interesting legal questions. If, for example, a company's complaint procedure called for complaints to be made to a member of the Human Resources Office, but instead the employee went to the CEO, that employee would not have complied with the complaint mechanism, but one could still argue that a member of "higher management" had been informed of her complaint, under an actual knowledge analysis. The issue gets much trickier as it becomes less clear whether the official to whom the employee has complained is higher management. If an employee complains to someone who is arguably, but not certainly, higher management, defendant's policy arguments become more persuasive. That is, why should an employee be allowed to circumvent the complaint policies, by complaining to an official not mentioned in that policy, thereby requiring an esoteric analysis of whether that official is "higher management?" In such a case, if the employee has gone to a person not specified in the policy, perhaps she should be estopped from arguing knowledge by the company.
As plaintiff has adduced evidence indicating that she did follow the corporate policy when she complained to the general manager, however, this Court fortunately does not have to determine the appropriate interaction between a rule requiring employee compliance with complaint mechanisms and a rule attributing knowledge to a company through the knowledge of its higher management. Specifically, on February 3, 1993, the president and owner of the company, Mr. David Strother, sent a memorandum to each employee advising the employees that sexual or racial harassment would not be tolerated and that anyone who has been a victim of such treatment should feel free to complain. Straight-forward, concise, and user friendly, the memorandum clearly reflects Mr. Strother's policy against such harassment. At the end of the memorandum, Mr. Strother indicates that any employee who is aware of a harassment problem should contact Mr. Strother immediately. (Pl.'s Dep., Def's Exh. 2). Attached to this memorandum was a document titled, "No Harassment Policy." Like the attached memorandum, the policy conveys in very understandable language the company's refusal to tolerate harassment. As to remedies, the policy indicates that an employee may go to a supervisor or manager whenever she feels that she is being harassed by anyone in the company. Further, the policy indicates that if the employee feels uncomfortable going to a supervisor or has not gotten relief from that supervisor, she should immediately contact "either the General Manager or the Dealer himself." Id.
Accordingly, by allegedly going to the General Manager with her complaint, plaintiff complied with the policy. As a member of "higher management," this general manager's knowledge of plaintiff's complaint constitutes the company's knowledge of her concerns. Therefore, the Court DENIES defendant's Motion For Summary Judgment as to plaintiff's federal claim of sexual harassment.
Plaintiff also raised state law claims charging the company with the negligent retention and supervision of employee Davis. The magistrate judge did not reach these claims because he had granted summary judgment on the federal claims and dismissed the state claims without prejudice to refiling them in state court. As this Court has resurrected the federal claim, it must address the viability of the state claims.
Defendant argues that plaintiff is unable to recover on her negligent supervision and retention claims because "[t]he Georgia Supreme Court has explicitly and repeatedly rejected the idea that a person can make a claim for emotional distress damages or for punitive damages absent some physical injury, which is absent in the present case." (Def.'s Mem. in Supp. of Mot. for Summ. J. [44] at 24.) Plaintiff, on the other hand, cites cases where employees have recovered from employers for the sexual harassment committed by the employee's co-workers. (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J. [49] at 23.)
Defendant is correct that the Georgia courts have limited recovery for claims concerning negligent conduct. "In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury." Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992) (citing OB-GYN Assoc. v. Littleton, 259 Ga. 663, 386 S.E.2d 146 (1989)). Although the Georgia courts have limited recovery for emotional damages absent a physical injury for cases involving negligence, the courts have recognized that "where the conduct is malicious, willful or wanton, recovery can be had without the necessity of an impact." Id. (citing Westview Cemetery v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 (1975)).
Accordingly, were this Court looking only at the above cases, which articulate the principle that, without a physical injury, a plaintiff cannot recover for purely emotional damages resulting from negligent conduct, defendant would clearly prevail. Unfortunately for defendant, however, the Georgia Court of Appeals appears to have ignored the above neutral principle in a case alleging negligence on the employer's part in retaining a sexual harasser in its work force. Specifically, in Rogers v. Carmike Cinemas, Inc., 211 Ga. App. 427, 439 S.E.2d 663 (1993), the Georgia Court of Appeals allowed a victim of sexual harassment to recover damages pursuant to a negligent hiring and retention theory where the recovery seemingly compensated the plaintiff for merely emotional damages. In that case, the plaintiff sought to hold the employer liable for its negligent retention of three employees who sexually harassed her; from the limited factual summary offered by the court, it appears that the plaintiff did not suffer any physical injury as a result of the sexual harassment. In allowing a compensatory award for negligent conduct by the employer, the Georgia Court of Appeals did not allude to the earlier line of cases that forbade recovery for emotional damages absent a physical injury. Moreover, the court also found that the trial court erred in granting the employer's motion for summary judgment as to punitive damages, finding that a negligent retention claim could support a punitive damages award "if there is evidence of an entire want of care sufficient to raise a presumption of conscious indifference to consequences." Id. at 431, 666. See also Troutman v. B.C.B. Company, Inc., 209 Ga. App. 166, 433 S.E.2d 73 (1991).
In two cases cited by plaintiff that preceded Ryckeley, the Court of Appeals recognized a cause of action based on the negligence of the employer in retaining a supervisor, not just an employee, who sexually harassed other employees. Cox v. Brazo, 165 Ga. App. 888, (1983); Favors v. Alco Manufacturing Company, 186 Ga. App. 480 (1988). In Favors, however, a plurality of the court appeared to recognize liability based on a respondeat superior theory, inasmuch as the harasser was a supervisor and agent of the company.
Accordingly, given the confusing and contradictory Georgia authority concerning the availability of recovery for a plaintiff who can only prove emotional damages as a result of the negligent retention of a co-employee, this Court deems it prudent to deny without prejudice defendant's motion for summary judgment on this issue and to allow this claim to be submitted to the jury, along with the federal claim. Defendant may seek to revisit this issue again at trial through the filing of a thorough brief on the matter. Further, in their requests to charge, defendant and plaintiff shall focus on the elements of such a claim, from their differing positions on the law. Moreover, plaintiff shall specify the particular elements that distinguish a negligent retention claim from a negligent supervision claim.
If plaintiff elects to submit this state law claim to the jury, the Court will require further briefing from plaintiff as to the elements of this claim and the instructions that should be given to the jury. Given the overlap between the Title VII theory and the state claim theory and the confusion in the Georgia law on this matter, plaintiff should consider whether she wishes to pursue an uncertain state law claim when she has a clearly applicable federal claim at her disposal. Instructing a jury on the differences between the federal claim and the state claim, in a manner that minimizes confusion, will be no mean feat.
IT IS HEREBY ORDERED that the Court ADOPTS in part and MODIFIES in part the Magistrate Judge's Report and Recommendation [57]. The Court DENIES Defendant's Motion For Summary Judgment as to plaintiff's federal Title VII claim of sexual harassment. The Court DENIES defendant's Motion For Summary Judgment as to plaintiff's remaining state law claims. The Court also DENIES Plaintiff's Motion For Summary Judgment [39].