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Moore v. Wheeler

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

February 10, 2017

GALVIN ELON MOORE, Plaintiff,
v.
AMEC FOSTER WHEELER, Defendant.

          ORDER

          WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the defendant's motion for summary judgment. (Doc. 20). The parties have filed briefs and/or evidentiary materials in support of their respective positions, (Docs. 20, 24, 25), [1] and the motion is ripe for resolution. After careful consideration, the Court concludes that the motion is due to be granted.

         BACKGROUND

         According to the pro se complaint, (Doc. 1), the plaintiff was employed by the defendant for about one week in April 2015. The defendant and the Court construe the complaint as asserting two claims, both under Title VII: one for hostile work environment and one for retaliation. The plaintiff in his response asserts no other.

         DISCUSSION

         Summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by “negating an element of the non-moving party's claim”; or (2) by “point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden.” Id. “Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

         “If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

         “If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may … consider the fact undisputed for purposes of the motion ….”).

         In deciding a motion for summary judgment, “[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).

         There is no burden on the Court to identify unreferenced evidence supporting a party's position.[2] Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment, ” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), and the Court accordingly limits its review to those arguments the parties have expressly advanced.

         I. Hostile Work Environment.

         The plaintiff's claim is based on being touched by a male co-worker twice on a single work shift. The first time, the co-worker bumped or tapped the plaintiff's buttocks with his hand one time while walking past the plaintiff; the incident lasted between half a second and a full second. (Doc. 20-2 at 8-9). Three or four hours later, as the co-worker walked hurriedly past the plaintiff, he thumped the plaintiff's crotch; again, the incident lasted between half a second and a full second, and the co-worker went right back upstairs. (Id. at 7, 15-17).

         The fourth element of a claim for sexual harassment is that “the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1244 (11th Cir. 2004). The defendant argues that the plaintiff cannot satisfy this test.

         “Determining whether the harassment was sufficiently severe or pervasive involves both an objective and a subjective component. [citation omitted] In determining the objective element, a court looks to all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008) (internal quotes omitted). “[I]solated incidents (unless extremely serious) will not ...


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