United States District Court, N.D. Alabama, Northeastern Division
INGE PRYTZ JOHNSON, Senior District Judge.
Pending before the court are defendant City of Huntsville, Alabama's ("COH") motion for summary judgment (doc. 22), defendant Robert Burks' motion for summary judgment (doc. 23), the defendants' brief in support of motions for summary judgment (doc. 24) and evidentiary material (docs. 25-1 through 25-57), the plaintiff's response (doc. 30) and affidavit (doc. 30-1), the defendants' reply (doc. 31) and motion to strike the plaintiff's affidavit (doc. 32), and the plaintiff's response to the motion to strike (doc. 36). Plaintiff Sherry Godsey, an employee of COH since June 4, 2009, asserts several claims based on incidences of alleged sexual harassment by COH employee Burks, that took place from around July 2009 to June 2012 (doc. 1 pp. 3-6). She asserts claims against COH for unlawful discrimination (Count One) and retaliation (Count Two) under Title VII of the Civil Rights Act of 1964, and negligent or wanton hiring, training, supervision, and retention (Count Seven). Id. pp. 6-8, 10-12. Against Burks she asserts claims for violation of 42 U.S.C. § 1983 (Count Three), assault and battery (Count Four), invasion of privacy (Count Five), and outrage (Count Six). Id. pp. 8-11.
STATEMENT OF THE FACTS
I. COH's Chain-of-Command and Sexual Harassment Policies
During the relevant period, Godsey worked as a custodial janitor for the General Services Department of COH, which was headed by Jeff Easter (doc. 25-4 pp. 9-11). Easter directly supervised several people, including Clifton McGinness. Id. p. 10. McGinness supervised Amy Woodall, who was later replaced by Willie Lynch. Id. pp. 15-16. Woodall, then Lynch, supervised Burks. Id. p. 15. In his position as a "custodial shift supervisor, " Burks oversaw the cleaning and supplying of certain buildings and assigned daily cleaning tasks to those under his supervision. See id. pp. 11-12; doc. 25-2 pp. 29-30, 40; doc. 25-3 p. 194; doc. 25-34 p. 10. Depending on which buildings Godsey was assigned to clean, Burks or another person, including Cassandra Ballard, supervised her work (doc. 25-4 pp. 11-12). The General Services Department had a chain-of-command policy, which generally required employees to bring concerns, questions, or problems first to their direct supervisors. Id. p. 16.
While Burks did not have authority to reassign workers to different buildings, he could make a recommendation to do so to his supervisor, who would sometimes take the recommendation (doc. 25-2 pp. 41-43). Burks also had the authority to make an entry in a "conversation log" documenting any problem he had with his subordinates (doc. 25-4 p. 57). When a conversation log was written, it was given to the next person up the chain of command and could work its way up to Easter. Id. pp. 57-63. In a log, Burks could ask his supervisor to take disciplinary action against a subordinate (doc. 25-2 p. 44). Burks also could bring his concerns to his supervisor verbally, which could work its way up to Easter (doc. 25-4 pp. 58-59). Easter had the ultimate authority to make disciplinary decisions, but he considered recommendations from supervisors in the chain below him. Id. pp. 54-55. When there was an issue with an employee's performance, he could issue a Notice of Departmental Hearing to address the issue. See id. p. 53.
During the relevant time period and currently, when COH hires a new employee, a Human Resources employee goes over COH's sexual harassment policy with the employee, and the new employee signs a paper indicating that he or she was briefed on the policy (doc. 25-5 pp. 36-37). Employees are advised that they do not have to stay within the chain-of-command policy of their department if they have a harassment complaint (doc. 25-3 pp. 38-39). Under the policy, an employee may take a complaint to their immediate supervisor or go directly to the Equal Employment Officer, Saundra Simmons, or the Director of Human Resources, Byron Thomas (doc. 25-36 p. 10; doc. 25-39 p. 13; doc. 25-3 pp. 12-13; doc. 25-5 p. 33). When an employee complains of harassment to a supervisor, the policy directs the supervisor to "immediately contact the Human Resources Director" (doc. 25-36 p. 10; doc. 25-39 p. 13).
The policy states that COH "does not tolerate harassment of employees and others based on, or related to, sex.... This policy applies to the actions of Department Heads, Division Managers, supervisors, [and] co-workers.... Department Heads, Division Managers, supervisors, and employees who violate this policy are subject to severe discipline, including termination of employment" (doc. 25-36 p. 9; doc. 25-39 p. 11). The policy also prevents retaliation on the basis of reported harassment and specifically defines the forms sexual harassment might take, including "unwelcome sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual nature" (doc. 25-36 p. 9; doc. 25-39 pp. 11-12). It discusses that harassment occurs when submission to such conduct is made a condition of employment, a demand that can be explicit or implied (doc. 25-36 p. 9; doc. 25-39 p. 12). It states that "[n]o supervisor shall threaten or insinuate... that an employee's refusal to submit to sexual advances will adversely affect the employee's employment, evaluation, classification..., assigned duties, or any other condition of employment or career development" (doc. 25-36 p. 9; doc. 25-39 p. 12).
Upon Burks' and Godsey's employment with COH in June 2006 and June 2009, respectively, they received copies of the sexual harassment policy (doc. 25-1 pp. 37-39; doc. 25-33 p. 13; doc. 25-35 p. 23). They also signed documents indicating that the harassment policy had been explained to them (doc. 25-1 pp. 40-41; doc. 25-33 p. 14; doc. 25-35 p. 24). At the time of the alleged harassment, Godsey was aware of the sexual harassment policy and that she had an obligation to report sexual harassment as a COH employee (doc. 25-1 pp. 68, 135).
II. The Sexual Contact Between Burks and Godsey
On June 4, 2009, Godsey began cleaning buildings for COH (doc. 25-33 p. 12). She was assigned to clean certain buildings, some of which were assigned to Burks to oversee ( see doc. 25-2 pp. 29-30). A few weeks after she began work, she informed Burks that she had been unable to turn off the lights in the Aquatics Building after she had cleaned it (doc. 25-1 pp. 131-33). They went to the building, which was closed to the public at the time, and when they arrived, Burks braced Godsey against a wall and kissed her. Id. pp. 132-33, 138. She did not tell him to stop, express that the kiss was unwelcome, or resist. Id. p. 134.
The next incident took place in 2010 while Godsey cleaned the Scruggs Center, which was closed to the public at the time. Id. pp. 137-38, 142. Burks asked her to show him where she had cleaned the bathroom. Id. p. 139. When they entered the bathroom, he undid her belt, took her pants down, and kissed her. Id. pp. 139-40. The two had sex in the bathroom. Id. p. 140. She returned his kiss and did not tell him to stop or try to push him away. Id. pp. 142-43. He did not say anything to her during the incident and did not threaten her or her job. Id. pp. 151, 219, 222.
Three weeks later in the bathroom of the Scruggs Center, which was closed to the public at the time, he again asked her to show him what she had cleaned. Id. pp. 182-85. When she told him that she did not want to go, he told her to "go back there." Id. p. 185. He pulled her by her arm into the bathroom and took off her pants. Id. pp. 185, 190. She struggled to get away, but he put her arms around his neck and held her. Id. p. 193. When he kissed her, she did not kiss him back. Id. They had sex. Id. p. 192. Because she was afraid someone would come in and catch them, she said, "we got to go, " "we got to quit... get our clothes on, " and "no, I don't want to do it." Id. pp. 186, 200-01. After she said this, Burks stopped, pulled his clothes up, and left the bathroom. Id. p. 201. During this incident, he did not threaten her or her job. Id. pp. 219, 222.
The two had sexual contact a third time in the Scruggs Center after he told her to go into the bathroom to show him what she had cleaned. Id. p. 216. She told him she did not want to go into the bathroom, but went with him after he said loudly, "In there. In there." Id. pp. 216-17. He did not say anything else or threaten her or her job. Id. pp. 218-19, 221-22. While they were having sex, she told him to stop because she was afraid that someone would come into the bathroom. Id. p. 223. He said "okay, " stopped, and left the bathroom. Id.
In early 2010, after the incidents at the Scruggs Center, he kissed her in the bathroom of another building that COH was contracted to clean. Id. pp. 168-70. She did not pull away, tell him "no, " or indicate that the kiss was unwanted. Id. p. 170. She told him that they needed to get out of the building before they got caught by other people. Id. pp. 171-72.
Also after the incidents at the Scruggs Center, Godsey and Burks met twice at motel rooms. Id. p. 230. The first time, he asked her to get a room with him. Id. p. 244. She drove to the motel after her shift and met him prior to his shift beginning. Id. pp. 240-41. He went into the lobby to pay for the room while she stayed in her car. Id. p. 243. They entered the motel room and he took a shower while she watched television. Id. pp. 248-49. When he got out of the shower, he took her clothes off and they had sex. Id. p. 249. She did not tell him that she did not want to do it or to stop. Id. pp. 243-44, 250. He did not threaten her physically before or during the first motel visit. Id. p. 246.
On the second occasion, Godsey went to the motel alone and paid for the room in the afternoon. Id. pp. 252-53. She got off work at 12:00 a.m. the following day and waited at a McDonalds for Burks to get off work an hour later. Id. pp. 234-35. She then drove to the motel to meet him and they had sex. Id. pp. 233, 257. The only reservation she had about having sex with him on this occasion was that she did not want to spend money on the room. Id. pp. 388-89. Prior to going to one of the motels, he told her that if she did not meet him at the motel he would "write [her] up." Id. p. 239.
The next incident occurred in the fall of 2010 in the upstairs women's bathroom of the Richard Showers Center, a building that was closed to the public at the time. Id. pp. 145-49. Burks removed Godsey's pants, kissed her, fondled her, and had sex with her. Id. pp. 148-49. She did not say "no, " ask him to stop, or tell him that the contact was unwelcome. Id. p. 150. She returned his kisses. Id. Neither of them said anything during the encounter. Id. pp. 150-51.
About a month later, after the Richard Showers Center had been closed to the public for the day, while showing Godsey what to clean, Burks took her to a closet containing exercise mats. Id. pp. 269-70, 272. He told her, "get in there, " but did not threaten her. Id. pp. 272-73. She said, "No. I don't want to go in there." Id. p. 273. He again said, "Get in there." Id. They had sex in the closet. Id. p. 270. While in the closet, she pushed him and said, "Stop. We got to get out of here. We've got to get out." Id. pp. 275-76. He stopped and got up. Id. p. 276. She did not tell him that she did not want to have sex with him. Id. 
The next sexual contact took place in the men's bathroom at the Natatorium in early 2011 while the building was closed to the public. Id. pp. 154, 156, 161. Burks told Godsey to show him where she had cleaned the bathroom, and she said that she did not want to show him. Id. p. 155. He signaled for her to go into the bathroom and they both went in. Id. After they entered the room, he undid her belt, put her arms around him, and kissed her. Id. p. 158. She returned his kiss. Id. pp. 159-60. He took her hands and made her do things she did not want to do and they had sex. Id. p. 158. She pulled her hands away and told him to stop because she was afraid that someone would come in the door. Id. pp. 158-59. He stopped. Id. p. 159. She did not otherwise tell him to stop or indicate that the contact was unwanted. Id. p. 160. They had sex two other times at the Natatorium; however, the details of those encounters are not in the record. See id. pp. 286-87. On one of these occasions, he threatened to write her up if she did not go into the bathroom with him. Id. pp. 288-90.
The next incident took place in the men's bathroom at the Jaycee Center where Godsey was cleaning. Id. pp. 300-02. Burks went into the bathroom and called for her to come in. Id. p. 302. She said, "What?" Id. p. 303. He grabbed her, took her pants off, and would not let her leave the bathroom. He did not threaten her or say anything other than, "get in here." She told him that she did not want to have sex and he did it anyway. Id.
On a later date at the Jaycee Center, while she was cleaning for another company, Unique Cleaning, he went into one of the bathrooms and said, "In here. In here." Id. pp. 309-10, 314. She went in and he undid her belt and they had sex. Id. pp. 314-15. He did not threaten her. Id. p. 315. She told him that they were going to get caught by the Unique Cleaning people. Id. pp. 316-17. He was afraid of getting caught, so he hurried up, put his clothes on, and left. Id. p. 317. He told her not to tell the Unique Cleaning people about the incident. Id. She did not report the incident to her supervisor at Unique Cleaning. Id. pp. 310-11.
The next sexual contact occurred at the Westside Gym where she was cleaning. Id. pp. 317-18. She told him that she did not want to have sex with him. Id. p. 323. He said that if she did not go into the women's shower room with him and have sex, he would "turn them people loose" on her, meaning he would open the doors to the building to allow people in who ordinarily sat in the parking lot of nearby apartments. Id. pp. 321-23. They had sex in the shower room. Id.
Approximately three months later in early 2012, he asked her to clean the Lakewood Center. Id. pp. 342-45. She did not want to clean the building. Id. p. 345. She drove to the building, however, and after showing her what to clean, Burks locked her in the building. Id. pp. 345-46. He left in a van. Id. p. 346. Shortly after she finished cleaning, he returned and asked to see what she had cleaned. Id. pp. 347, 350. They went into a shower room, where he removed her pants. Id. pp. 351-52. When she said she did not want to have sex, he told her to be ...