United States District Court, Middle District of Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE
The plaintiff, Mary Linda Fryer, a former employee of Southeastern Career Apparel Inc., (''SECA'') brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ' 2000e et seq. (''Title VII''), alleging that she was discriminated against on the basis of her race (African-American) and was sexually harassed and retaliated against by her employer, SECA. This court has jurisdiction of Fryer’s discrimination claims pursuant to the jurisdictional grant in 42 U.S.C. ' 2000e-5. The District Judge referred this case to the Magistrate Judge for all pretrial proceedings and recommendation. (Doc. 3) Thereafter, this court granted the motion to consolidate 1:13-cv-545 and 1:13-cv-683, and designated 1:13-cv-545 as the lead case. (Doc. 17).
Now pending before the court is Defendant's motion for summary judgment and supporting briefs and exhibits filed January 30, 2014 (Doc. 31) to which Plaintiff filed responses on March 31, 2014 (Docs. 37 and 38) and May 12 and 14, 2014 (Docs. 45 and 47). Also before the court is Defendant’s response to Plaintiff’s motion to be heard and attached exhibits (Doc. 25) and Defendant’s objections and response to Plaintiffs answers to Defendant’s motion for summary judgment and attached exhibits. (Doc. 41). The court has carefully reviewed the motion for summary judgment, the briefs filed in support of and in opposition to the motion, and the supporting and opposing evidentiary materials and concludes that the motion is due to be granted.
II. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where Athere is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." This standard can be met by the movant, in a case in which the ultimate burden of persuasion at trial rests on the nonmovant, either by submitting affirmative evidence negating an essential element of the nonmovant's claim, or by demonstrating that the nonmovant's evidence itself is insufficient to establish an essential element of his or her claim. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Jeffery v Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995); Edwards v. Wallace Cmty Coll., 49 F.3d 1517, 1521 (11th Cir. 1995).
The burden then shifts to the nonmovant to make a showing sufficient to establish the existence of an essential element of his claims, and on which he bears the burden of proof at trial. Id. To satisfy this burden, the nonmovant cannot rest on the pleadings, but must, by affidavit or other means, set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e).
The court's function in deciding a motion for summary judgment is to determine whether there exist genuine, material issues of fact to be tried; and if not, whether the movant is entitled to judgment as a matter of law. See Dominick v. Dixie Natl Life Ins. Co., 809 F.2d 1559 (11th Cir. 1987). It is substantive law that identifies those facts which are material on motions for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986); See also DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499 (11th Cir. 1989).
When the court considers a motion for summary judgment, it must refrain from deciding any material factual issues. All the evidence and the inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. Earley v. Champion Inti Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant bears ''the exacting burden of demonstrating that there is no dispute as to any material fact in the case." Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).
Plaintiff worked as a seamstress for SECA until February 26, 2014. Plaintiff’s pleadings filed with this court are difficult to follow, at best. While Plaintiff consistently alleges claims of discrimination, sexual harassment and retaliation, she changes the factual allegations supporting these claims throughout her pleadings. Further, many of these allegations are nonsensical or unintelligible. Although the court is required to liberally construe a pro se litigant’s pleadings, the court does not have “license to serve as de facto counsel for a party . . . or to rewrite an otherwise deficient pleading in order to sustain an action.” GRJ Investments, Inc. v. County of Escambia, Fla, 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted). However, in order to fairly address Plaintiff’s claims, the court will summarize Plaintiff’s factual allegations as stated in her Charges of Discrimination filed with the Equal Employment Opportunity Commission (“EEOC”), her two complaints and other pleadings filed in this court and her responses to Defendant’s discovery.
The record reflects that Plaintiff filed two EEOC charges alleging sexual harassment, discrimination and retaliation by her employer, SECA. In her first Charge filed June 18, 2012, Plaintiff complained that she was sexually harassed, retaliated and discriminated against by “Mary Reeves”, “(Black, Floor Supervisor)” and that she complained of this to Starla Anderson, Jerry Mills, and J.E. Saliba, SECA management. Specifically, she alleges that “Reeves” referred to her as “sexy” and “brushed against me [sic] breast, ” required her to repair white and Asian seamstresses’ faulty work and wrote her up for refusing to do the repair work. (Doc. 31-2 at p. 28). In her second Charge filed July 21, 2013, she alleges she was retaliated and discriminated against when following her first EEOC Charge, Jerry Mills, Plant Supervisor “wrote me up for not filling out a Payroll Adjustment/Vacation Request Form” and for leaving an hour early, even though “Mary Reeves, (White Floor Supervisor) approved me to leave one hour early . . . to attend a funeral.” (Doc. 31-2 at p. 30).
In her first complaint filed with this court on July 30, 2013, Plaintiff alleges “sexual harassment, retaliation and discrimination” and specifically states that “Mary Reeves, female floor supervisor”, sexually harassed her by calling her “sexy”, brushed against her breast, came in on her in the bathroom, grabbed her hands, stared at her and followed her to her apartment. She also states, without more, that “Mary Reeves, Jerry Mills and Hellen West is retaliating against me.” She next states “Mary Reeves is stocking [sic] me but at work she wont come or ack [sic] like she don’t hear me when I call. Made me a cake and I told her not too. Mary Reeves follow me around at work.” (Doc. 1- Case No. 13cv545).
In her second complaint filed with this court on September 23, 2013, Plaintiff alleges “retaliation” and race discrimination “brought on by sex harassement.” Specifically, she states “I was written up without given time to hand in my assentee sheet – dereat by been n yell at – follow everywhere – all my work would be return that had been passn - was not allow to talk & co-worker was told not to talk to me they have did everything to be but spit on me & slap me.” [sic] (Doc. 1- Case No. 13cv683).
In her response to Defendant’s interrogatories Plaintiff states that she was sexually harassed by Mary Reese, when she called her sexy, came in on her in the bathroom, brushed up against her breast, grabbed her hands, eavesdropped on her, and followed her home and to the Wal-Mart. (Doc. 25-1 pps.2-3). She also states that she was retaliated against because she received an unfounded write up, was followed around the plant, not properly trained to do a new job, her “rework” was returned, “would not answer me when Id. [sic] call”; “if Id. asked a question I be told by Mary Reeves just put some thread in it”; “rules would change when it came to me.” (Doc. 25-1 p.2). She also states that she was discriminated against because she was required to fix white employees’ deficient work, was not allowed to help with new work, was not allowed to move around the facility as were white employees, was not allowed to talk to other workers,  “and was excluded from co adienda’s like I did not have a fire dreal parme I got one now. I never seen cards of thanks or sick nothing. [sic]” (Doc. 25-1 p. 4). In response to additional discovery requests, Plaintiff further states that she was retaliated against for her discrimination claims when Jerry Mills required her to “inspect the dress - cause Mrs. Brenda went in his office crying. So now they expect me to check all labels – make sure the right ply, [sic] which is Brenda’s job.” (Doc. 25-3 p.10).
Plaintiff’s Answer includes factual allegations which, in part restate her previously stated claims, and also which state entirely new facts. She claims these facts demonstrate a hostile work environment. Again, these statements are difficult to follow, but to the best of the court’s ability the factual allegations are set out below. First, she claims there was a meeting where it was discussed that she failed to repay a loan to SECA. Second, she was required to do other employees “re-work”. Third, her employer caused her to “look like [she] was late” because the lunch bell and late bell rang early. Fourth, her employer only cared if she answered her personal calls, not other people. Fifth, she was limited access to lunch areas. Sixth, a co-worker said “out loud, what you don’t get it, we don’t want you here dogg”. Seventh, her co-workers “would start mess[ing] with me” and this caused her to “talk to my self and use profanity not out loud but when left alone woke quitly sing to my self thereby cause a forther unsafe work environment [sic].” Eighth, her co-workers asked her to do others “rework”. Ninth, her co-worker’s broke the rules and had open containers on the sewing floor. Tenth, she was discriminated against because she reported someone smoking in the bathroom. Eleventh, she restates the numerous allegations previously made against Mary Reese. Twelfth, her co-workers conversations about “sports (football games)” . . . “created an unsafe work place.” Finally, she complains that her co-workers did poor quality work and management did nothing about it. (Doc. 37 pp. 1-4). In addition to requesting damages for sexual harassment, retaliation and discrimination, Plaintiff requests damages for “hospital bills”, “wrongful termination” and “on going therophy [sic] and doctors”. (Doc. 37 p. 6).
The undisputed facts demonstrate that Plaintiff sent numerous letters to SECA complaining about various aspects of her employment. These letters include claims of sexual harassment by Mary Reese, who worked in the sewing department of SECA with Plaintiff. Plaintiff identifies this employee as Mary Reeves, throughout her pleadings and identifies her race as white and black at different times. She further alleges that she was “floor supervisor”. However, the evidentiary materials demonstrate that Mary Reese is a black co-employee of Plaintiff. (Doc. 31, affids, M. Crim and J. Casey). Further, none of these letters include any allegation of racial discrimination. Id. SECA investigated the claims of sexual harassment in May and June of 2012. (Doc. 31. affid. M. Crim). As part of the investigation, SECA representatives, Marshal Crim, SECA President and John Casey, SECA Production Manager, met with Plaintiff about her claims. They also met with Ms. Reese and cautioned her “to abstain from comments and words that might be misconstrued as suggestive, lewd, or sexual in nature” including, specifically, the word “sexy”. (Doc. 31, affids. J. Casey and M. Crim). Ms. Reese denied Plaintiff’s allegations in the meeting. Id.
The EEOC investigated Plaintiff’s complaints contained in the first EEOC charge which was filed on June 18, 2012. (Doc. 31, affid. M. Crim). In response to other of Plaintiff’s other complaints, SECA conducted a second internal investigation in April, 2013. As part of this investigation, John Casey, SECA Production Manager, met with Jerry Mills, SECA plant manager, to discuss Plaintiff’s allegations that Mills followed her around the plant, yelled at her, witnessed Ms. Reese touching Plaintiff’s shoulder, focused solely on Plaintiff’s trips to the time clock, and threatened to fire her. (Doc. 31, affid. J. Casey, Exhibits E and F). In that meeting, Mills denied Plaintiff’s allegations and gave an explanation for his actions. Id. Casey cautioned him to treat Plaintiff with the same respect with which he treated other employees. Id.
On April 29, 2013, the EEOC sent Plaintiff a Dismissal and Notice of Rights which stated that the EEOC was “unable to conclude that the information obtained establishes violations of the statutes.” (Doc. 31, affid. M. Crim, Ex. C). Thereafter, on July 21, 2013, Plaintiff filed another Charge of Discrimination with the EEOC, wherein Plaintiff alleged racial discrimination for being issued a warning relating to a payroll form and for leaving early on one occasion. (Doc. 31 affid. M. Crim. Ex. D). In response to this charge, the EEOC conducted a short investigation wherein the charges were found to be meritless. On July 31, 2013, the EEOC issued another Dismissal and Notice of Rights which stated that the EEOC was “unable to conclude that the information obtained establishes violations of the statutes.” Id. On July 30, 2013, Plaintiff filed a complaint with this court in Civil Action 1:13-cv-545. On September 23, 2013, Plaintiff filed a second complaint with this court in Civil Action 1:13-cv-683.
Defendants maintain that Plaintiff was not terminated or demoted or required to change her job as a result of these complaints; nor did she suffer any decrease in pay or other change in employment benefits. (affid. M. Crim; affid. J.Mills; affid J. Casey). It is undisputed that on November 25, 2013, Plaintiff failed to report for work and failed to provide SECA with any explanation of the reason for her absence until she presented SECA a “Certification of Health Care Provider for Employee’s Serious Health Condition” dated February 10, 2014 (Id; Doc 37-13). It is also undisputed that Plaintiff was hospitalized from November 26, 2013 until December 5, 2013 as the result of anxiety and depression. (Doc. 37-13). Following her hospitalization, Plaintiff did not return to work. On February 26, 2014, SECA sent Plaintiff a letter ...