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Waltz v. Dunning

United States District Court, N.D. Alabama, Southern Division

December 31, 2014

JONATHAN WADE DUNNING, an individual, and BIRMINGHAM HEALTHCARE, INC., an Alabama Corporation; and SYNERGY MEDICAL SOLUTIONS, INC., an Alabama Corporation, Defendants.


JOHN E. OTT, Chief Magistrate Judge.

Defendants, Birmingham Healthcare, Inc. ("BHC") and Synergy Medical Solutions, Inc. ("Synergy"), have moved for summary judgment pursuant to FEDERAL RULE OF CIVIL PROCEDURE 56 on all of the claims brought by Plaintiff, Sharon Dianne Waltz. (Doc. 50 & 54).[1] The claims arise out of the alleged improper conduct of Jonathan Dunning ("Dunning"), the Chief Executive Officer of BHC and Synergy, during Plaintiff's employment with both companies. The motions for summary judgment are properly under submission, having been fully briefed and supported by evidentiary submissions. (Docs. 51, 55-57, 59, 60-67, 69-70).[2] For the reasons stated below, the Court finds that both motions are due to be granted.


A. Facts[3]

Plaintiff, a professional licensed clinical psychologist, began working at BHC in 2001 as a part of her post-doctoral fellowship. (First Deposition of Sharon Waltz[4] ("1st Waltz Dep.") at 20-22). She was hired by BHC on a part-time basis on September 1, 2002, as Behavioral Science Director. (Second Deposition of Sharon Waltz[5] ("2d Waltz Dep.") at 28). She began working full time at BHC in October 2002. (Jonathan Dunning Deposition[6] ("Dunning Dep.") at 21). Dunning was the Chief Executive Officer ("CEO") at that time and Plaintiff reported directly to him. (Dunning Dep. at 122-23; 1st Waltz Dep. at 22, 83). Plaintiff worked as a full-time employee at BHC from October 2002 through December 31, 2004. (Dunning Dep. at 21; 2d Waltz Dep. at 28, 30, 51). Plaintiff returned to BHC in July 2005, and worked there until she left again on October 31, 2008, to go to Synergy. (2d. Waltz Dep. at 51).

Soon after Plaintiff began working full-time at BHC, Dunning began making sexual comments to her on a regular basis, including that "he liked her body, he wanted [her] to wear certain jeans, [and] he liked the way [her] butt looked in those jeans." (2d Waltz Dep. at 61-62). In March 2003, following a late night of work at the office and a dinner, Dunning "took [Plaintiff] back to his office and proceeded to take off [her] clothes and have sex with [her]." ( Id. at 63-64). She initially resisted his advances, including the removal of her clothes, but ultimately gave in. ( Id. at 66-69). She then went home. She did not tell anyone about the assault until June 2012, more than nine years after the assault occurred, because she was afraid. ( Id. at 70-71).

According to Plaintiff, initially she did not tell Dunning that she wanted to have sex with him, but on subsequent occasions she would do so if she felt he was getting upset or angry or if she thought he was going to hurt her. ( Id. at 71). She testified that following the assault in March 2003, Dunning told her, "You're mine, no one can have you except for me; if I can't have you, no one can; you're going to be my bitch; a king needs a queen." ( Id. at 73). She also stated that at unspecified times Dunning choked her, pulled her hair, and held her down. ( Id. at 72). According to Plaintiff, one incident occurred in the office and one occurred in a hotel room when she refused his advances in about late 2003. ( Id. at 72-73).

Plaintiff testified that she told Dunning "several times" that she did not want to have sex with him. ( Id. at 74). According to Plaintiff, however, "[i]t was easier to have sex with him than to [have] him get upset or physically abus[ive with her.]" ( Id. at 75, 86). This "consensual" relationship commenced in early 2004. ( Id. at 76). Plaintiff and Dunning discussed a future relationship, including having children, and referred to each other as husband and wife despite the fact that Dunning was married. ( Id. at 76, 93-94). Thereafter, they had two children together-one in 2005 and the other in 2007. ( Id. at 77; Doc. 61-6 at 2 of 5). Dunning was present for the birth of both children. (1st Waltz Dep. at 18-19).

According to Plaintiff, she told Dunning several times in 2004 that she did not want to have sexual relations with him any longer. (2d Waltz Dep. at 87). The relationship did not end, however, and she did not complain to anyone at BHC. ( Id. at 86). She resigned from BHC in late 2004, telling Dunning that "she did not want to have that kind of... work environment any longer." ( Id. at 87). She returned to work a couple of weeks later. ( Id. at 88).

Plaintiff ultimately terminated her employment with BHC on October 31, 2008, to become the Development Director at Synergy, a company started by Dunning and closely tied to BHC. ( Id. at 37). Plaintiff did not tell anyone at Synergy about her relationship with Dunning because he told her not to. ( Id. at 103-04).

At some point in her relationship with Dunning, certainly by 2009, Plaintiff started wearing a wedding band and ring given to her by Dunning. ( Id. at 102-03). Plaintiff and Dunning did many activities as a family. They spent holidays together and took family vacations. (1st Waltz Dep. at 30; 2d. Waltz Dep. at 13, 145-148; 221-34; BHC Ex. 2 (Sealed video disc of family vacations and other events)). Plaintiff and Dunning took videos to commemorate special occasions. ( Id. ) Plaintiff's parents included Dunning in their family activities, such as birthdays and holidays. (William Wright Deposition[7] ("Wright Dep.") at 47, 51:4-52:5; 1st Waltz Dep. at 38-39; 2d Waltz Dep. at 177-78). Dunning helped cover the medical expenses incurred by Plaintiff's mother when she was stricken with cancer. (1st Waltz Dep. at 46-47). Dunning also purchased a home and partially furnished it for Plaintiff and their children. (2d Waltz Dep. at 106-07).

Plaintiff's physical relationship with Dunning continued until February 2012, when she stopped going on trips and to places with him. ( Id. at 81, 83, 94). Plaintiff testified that about this time, Dunning commented, "You know I pay you to perform your wifely duties." ( Id. at 94). She responded that she was "not doing that anymore." ( Id. at 94-95). According to Plaintiff, Dunning replied, "You're just acting out, you'll come back to me, you don't mean it." ( Id. at 95). She also testified that Dunning became "angrier with [her]" after their physical relationship stopped. ( Id. at 91).

Plaintiff ceased working for Synergy on May 1, 2012. ( Id. at 84). She did not complain to anyone other than Dunning about the sexual harassment she experienced while at BHC or Synergy. ( Id. at 86, 225).

Dunning filed a complaint in the Family Court of Jefferson County, Alabama on April 25, 2012, seeking custodial rights concerning the two children born out of his relationship with Plaintiff. (Doc. 53-16).

Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") against Synergy on July 19, 2012. (Doc. 17-1). In her charge, Plaintiff alleged she was subjected to sexual harassment by the "chief executive officer" of Synergy, and that she believed that she had to maintain a sexual relationship with him to keep her job. ( Id. at 2). Plaintiff specified Synergy as the only organization that had discriminated against her. ( Id. )

The EEOC investigated the charge against Synergy and informed Plaintiff on January 2, 2013, that it had been "unable to conclude that the information obtained establishes violations of the statutes." (Doc. 21-1 at 2). The EEOC's Dismissal and Notice of Rights informed Plaintiff that she had a right to sue Synergy within ninety days. ( Id. ) It did not name BHC, nor was a copy served on BHC. ( Id. )

B. Procedural History

This action was initially filed in Jefferson County Circuit Court against Dunning and BHC on February 14, 2013. (Doc. 1). The action was removed to federal court by the defendants as it asserted federal claims under Title VII of the Civil Rights Acts of 1994. (Doc. 1 at 1). It also included state law claims. ( Id. ) Following removal, Plaintiff filed an amended complaint, adding Synergy as a defendant. (Doc. 17). The claims in the amended complaint include harassment, discrimination and a "hostile work environment" in violation of Title VII (Count One); invasion of privacy (Counts Two & Three); negligent hiring, supervision, training and retention (Count Four); assault and battery (Counts Five (Dunning) and Seven (BHC and Synergy)[8]); and outrage (Count Six). (Doc. 17).

Dunning has since been dismissed as a defendant on Plaintiff's motion. (Doc. 34 & 37). The Title VII claim (Count One) against Synergy has also been dismissed. (Doc. 45). All of Plaintiff's remaining claims arise from alleged sexual harassment beginning in October 2002 while she was employed under Dunning at BHC. (Doc. 17).

Presently before the court are the motions of BHC and Synergy for summary judgment on all of Plaintiff's ...

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