United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, District Judge.
Plaintiff Sonya Marshall is a former employee of defendant Bravo Food Service, LLC, d/b/a Little Caesars. Ms. Marshall last worked for Bravo as an assistant manager at the company's Center Point/Huffman location. In November 2011, Bravo terminated Ms. Marshall's employment. According to Bravo, Ms. Marhsall misappropriated company property by receiving a gift card that another store employee traded for pizzas and by failing to report the incident to management.
Ms. Marshall attributes Bravo's employment decision to discriminatory conduct. She claims that Bravo subjected her to a sexually hostile work environment and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Bravo asks the Court to enter judgment as a matter of law in its favor on all of Ms. Marshall's claims. (Doc. 17). Having reviewed the record, and with the benefit of oral argument,  the Court finds that genuine issues of fact exist regarding Bravo's actual or constructive notice of the harassing behavior. Therefore, Ms. Marshall's hostile work environment claim will proceed to trial. Ms. Marshall's retaliation claims fail because she did not engage in statutorily protected conduct.
I. Relevant Undisputed Facts and Procedural Background
A. Ms. Marshall's Employment with Bravo
Bravo operates a number of Little Caesars restaurants in the Birmingham, Alabama area. (Doc. 18-1, ¶ 2). Bravo hired Ms. Marshall on October 12, 2009 to work as an hourly associate (or crew member) in its Center Point/Huffman restaurant. (Doc. 18-1, ¶ 5; Doc. 26-1, p. 9). For a couple of months in 2010, Ms. Marshall split time between the Center Point/Huffman restaurant and the Eastlake restaurant. (Doc. 26-1, p. 12). At some point, Bravo promoted Ms. Marshall to an hourly assistant manager position. (Doc. 26-1, p. 9). Ms. Marshall remained in the assistant manager position until Bravo fired her. (Doc. 26-1, p. 9).
B. Bravo's Management Structure
Ramon Arias is Bravo's president. His son, Matthew Arias, is Bravo's Vice President. (Doc. 18-1, ¶ 7).
Bravo generally assigns fewer than six employees to work each shift in its Little Caesars stores. (Doc. 18-1, ¶ 7). General managers oversee the operations of their stores and provide day-to-day supervision of employees. Hourly assistant managers serve as shift leaders and act as the manager on duty when the general manager is not in the store. (Doc. 18-1, ¶ 7).
General managers do not have the authority to formally discipline assistant managers; to change employees' pay; or to hire, fire, promote, or demote employees. (Doc. 18-1, ¶ 7). Ramon and Matthew Arias make the decisions to hire, fire, and promote Bravo employees. (Doc. 18-1, p. 4, ¶ 7). Bravo's Pre-Employment Training Handbook states that "[o]nly Ramon Arias can terminate your employment" at Bravo. (Doc. 18-1, p. 9, ¶ 25).
C. Bravo's Anti-Harassment Policy
Bravo's Pre-Employment Training Handbook contains an anti-harassment policy. The policy provides:
Bravo Food Service will not TOLERATE any form of sexual harassment. Sexual harassment behavior includes sexual conversations, jokes, comments, inappropriate hand or body signs, touching... and activity that makes a crew member or any other individual feel uncomfortable.... Any incident of sexual harassment must be reported immediately to Ramon S. Arias @ (205) 587-1841.
(Doc. 18-1, p. 8, ¶ 2) (emphasis in policy). The policy also states that employees should "immediately report to [their] Manager or Ramon Arias... [a]ny instance of [h]arassment or inappropriate conduct." (Doc. 18-1, p. 8, ¶ 11). The handbook directs employees to a one page note on sexual harassment defining the term and instructing employees to "use any employer complaint mechanism or grievance system available." (Doc. 18-1, p. 9).
When Ms. Marshall started working for Bravo, she remembers signing an acknowledgement form confirming that she read Bravo's Pre-Employment Training Handbook and understood the rules and regulations contained in the handbook. (Doc. 18-1, p. 7; Doc. 26-1, p. 10). Bravo cannot locate the acknowledgment form that Ms. Marshall signed. Ms. Marshall testified that she does not remember reading or signing Bravo's sexual harassment policy. (Doc. 26-1, p. 10).
D. Harassing Conduct
In the summer of 2010, while Ms. Marshall was working shifts at both the Center Point and Eastlake Little Caesars stores, Ms. Marshall met Anna Taylor at the Eastlake location. (Doc. 26-1, p. 14). At the time, both Ms. Marshall and Ms. Taylor were assistant managers. (Doc. 26-1, p. 14). While both women were working in the Eastlake store, Ms. Taylor made comments to Ms. Marshall about her appearance. For example, Ms. Taylor said that Ms. Marshall "look[ed] nice" and that her "hair look[ed] pretty." (Doc. 26-1, p. 14). Ms. Marshall did not view Ms. Taylor's 2010 comments as harassment. (Doc. 26-1, p. 14). According to Ms. Marshall, Ms. Taylor did not start harassing her until 2011 when the two women worked together at the Center Point/Huffman restaurant. (Doc. 26-1, p. 15).
In 2011, Bravo placed Ms. Taylor in the Center Point/Huffman restaurant as a general manager. (Doc. 26-1, p. 15). By that time, Ms. Marshall was no longer rotating between the Eastlake and the Center Point stores; she worked only at the Center Point location. When she began working as the general manager of the Center Point store, Ms. Taylor's behavior changed. According to Ms. Marshall, "[t[here was a big difference. The harassment was really graphic." (Doc. 26-1, p. 14). For example, Ms. Taylor "would walk around like she was wearing or had a penis" and would "rub her body against [Ms. Marshall's]." (Doc. 26-1, p. 15). Ms. Taylor once asked Ms. Marshall "do you feel this" and said "let me just stick the head in." (Doc. 26-1, p. 15). Ms. Taylor "smacked" Ms. Marshall on her buttocks twice. Taylor once commented: "gol, you got a big ass; when can I get some of that[?]" ( Id. ). Ms. Marshall testified that Ms. Taylor made these comments or comments like them every day that Ms. Marshall worked with Ms. Taylor. ( Id. at p. 17). Leroy Davis, an hourly associate, and Aimee Peterson, an hourly assistant manager, overheard some of Ms. Taylor's comments and witnessed her behavior. (Doc. 26-1, pp. 15-16). Martez McCoy, another hourly associate, also observed Ms. Taylor's conduct. (Doc. 26-1, p. 28).
Ms. Marshall did not complain about Ms. Taylor's harassment to Ramon Arias. (Doc. 18-1, ¶ 9; Doc. 26-1, p 22). Ms. Marshall did not complain personally about Ms. Taylor's harassment to Matthew Arias, or her zone manager, Frezell Warren. (Doc. 26-1, pp. 18, 20). Ms. Marshall complained about Ms. Taylor's behavior only to Ms. Peterson, who was Ms. Marshall's equivalent in the Bravo management hierarchy. (Doc. 26-1, p. 18). Ms. Marshall told Ms. Peterson that Ms. Taylor's harassment "was getting so bad" that Ms. Marshall "was going to say something to somebody." (Doc. 26-1, p. 18). Ms. Marshall told Ms. Peterson that she (Ms. Marshall) "was going to call Matthew [Arias] and talk to him about it." (Doc. 26-1, p. 18). According to Ms. Marshall, Ms. Peterson told Mr. Warren that Ms. Marshall planned to call Matthew Arias. (Doc. 26-1, p. 18).
After Ms. Marshall complained to Ms. Peterson, Mr. Warren changed Ms. Marshall's schedule and required her to work on Sundays. (Doc. 26-1, p. 19). Mr. Warren also required Ms. Marshall to make the schedule and clean the back of the store, the walls, and the pizza racks. (Doc. 26-1, p. 20). Mr. Warren stopped ...