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Whisenant v. CSX Transportation, Inc.

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

March 11, 2015

ROBERT D. WHISENANT, Plaintiff,
v.
CSX TRANSPORTATION, INC., et al., Defendants.

MEMORANDUM OPINION

WILLIAM M. ACKER, Jr., District Judge.

The complaint filed by plaintiff Robert D. Whisenant contains a claim of retaliation under Title VII against defendant CSX Transportation, Inc ("CSX") and two claims against defendant Camille Lockhart under Alabama state law for tortious interference and defamation. (Doc. 1 at 4-5). Before the court are motions for summary judgment[1] respectively filed by CSX (Doc. 31) and Lockhart (Doc. 33). For the reasons stated below, both defendants' motions for summary judgment will be granted.

I. Retaliation

Under Title VII, a prima facie case for retaliation requires a plaintiff to show that "(1) [he] participated in a statutorily protected activity; (2) [he] suffered a materially adverse employment action; and (3) there is a causal connection between the two." Evans v. Books-A-Million 762 F.3d 1288, 1298 (11th Cir. 2014). "Even if an employment practice is not as a matter of fact unlawful, a plaintiff can establish a prima facie case of Title VII retaliation if he shows that he had a good faith, reasonable belief that the employer was engaged in unlawful employment practices." Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 857 (11th Cir. 2010).

However, it is "the bedrock principle [of Title VII] that not all objectionable conduct or language amounts to discrimination under Title VII... general vulgarity or references to sex that are indiscriminate in nature will not, standing alone, generally be actionable. Title VII is not a general civility code.'" Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th Cir. 2010) ( quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). "[I]n order to be actionable under the [Title VII] statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher, 524 U.S. at 787. "Properly applied, they will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Id. at 787-88 (quotation marks omitted).

In this case, Whisenant alleges that CSX retaliated against him for complaining to a supervisor about a single off-color joke[2] he overheard another of his supervisors tell at a meeting in an adjacent room. (Doc. 32-14 at 34-35). While Whisenant may have personally thought his supervisor's joke to be offensive (Doc. 32-14 at 34), "no reasonable person could have believed that the single incident... violated Title VII's standard." Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001). Whisenant himself admits that "you can expect men to tell that joke in front of men, " finding the incident offensive merely "[i]n the context of a woman telling that joke in front of about seven, eight, nine men." (Doc. 32-14 at 34). Whisenant further admits that the "joke by [his supervisor] is the only comment that [he is] referring to that [he] thought was offensive." (Doc. 32-14 at 35). Title VII protection does not extend to the mere "simple teasing, offhand comments, and isolated incidents" common in certain work environments. Breeden, 532 U.S. at 271. When construed in the light most favorable to Whisenant, at best, this single off-color joke constituted no more than an uncomfortable workplace occurrence well short of the kind of sexual harassment Title VII protects from retaliation after being complained of. Therefore, summary judgment in favor of CSX is appropriate because Whisenant fails to raise sufficiently a protected activity under Title VII.

II. Tortious interference

The court could dismiss without prejudice the claims brought under Alabama tort law for lack of subject matter jurisdiction because of the disappearance of the federal question as to which they are appended. But, because of statute of limitations concerns and judicial economy, the court chooses to continue its exercise of supplemental jurisdiction.

Under Alabama law, the tort of intentional interference with a contractual or business relationship requires "(1) the existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage." White Sands Grp., L.L.C. v. PRS II, LLC, 32 So.3d 5, 14 (Ala. 2009) (emphasis added). Under Alabama's "stranger" requirement:

One cannot be guilty of interference with a contract even if one is not a party to the contract so long as one is a participant in a business relationship arising from interwoven contractual arrangements that include the contract. In such an instance, the participant is not a stranger to the business relationship and the interwoven contractual arrangements define the participant's rights and duties with respect to the other individuals or entities in the relationship. If a participant has a legitimate economic interest in and a legitimate relationship to the contract, then the participant enjoys a privilege of becoming involved without being accused of interfering with the contract.

Walter Energy, Inc. v. Audley Capital Advisors LLP, 2015 WL 731152, at *6 (Ala. Feb. 20, 2015) (quoting Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1157 (Ala. 2003)).

Generally speaking, an independent contractor's relationship with the party for whom it performs work, is independent from that entity's relationships with its employees, Latham v. Precision Strip, Inc., 2013 WL 6196105, at *4 (N.D. Ala. Nov. 27, 2013). In this case Lockhart's particular contractual arrangement with CSX established certain rights and duties vis-a-vis Lockhart and CSX employees. In her contract with CSX, Lockhart agreed in pertinent part:

... to periodically meet with CSX Transportation Inc. Management personnel to discuss any issues concerning cleaning responsibilities and safety matters... [and] to route concerns, observations and or comments to the management of CSX Transportation Inc. (Doc. 34-2 at 2).

Lockhart additionally agreed "to cooperate with CSX [] employees to accommodate the property in providing cleaning services at such other time as any is requested from time to time." (Doc. 34-2 at 2). Consistent with these contractual rights and duties, Lockhart discussed with CSX the issues and concerns involving Whisenant that her staff had raised with her. (Doc. 34-1 at 3-19; Doc. 34-3 at 1-2; Doc. 37-5 at 1-2). Therefore, even though Lockhart was not a party to Whisenant's employment relationship with CSX, Lockhart is not a stranger to the relationship given the interwoven contractual arrangements between her, CSX, and CSX employees. Lockhart's contract with CSX defined her rights and duties not only with respect to CSX but other entities in the relationship, including CSX employees. Within the domain of performing her company's cleaning duties at CSX, Lockhart enjoyed the privilege of becoming involved with CSX and its employees without being subject ...


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