United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
court has for consideration plaintiffs' partial motions
for summary judgment as to Surgery Center of Cullman, Inc.,
Surgery Center of Cullman, L.L.C., Surgical Care Affiliates,
L.L.C., and Cullman Outpatient Surgery, L.L.C.'s
(hereinafter, the entity defendants) and Dr. Kevin
Johnson's affirmative defenses. Docs. 138 and
For the reasons explained below, the motions are due to be
granted only as to the administrative prerequisite defense
asserted by the entity defendants and some aspects of the
statute of limitations defense asserted by all defendants.
The entity defendants' affirmative defenses
seek summary judgment as to the entity defendants'
Faragher-Ellerth, administrative prerequisites,
statute of limitations, “like or related claims,
” laches/waiver/estoppel/unclean hands, and “same
action regardless of impermissible motive” affirmative
defenses. See doc. 138 at 64-78.
Faragher-Ellerth defense allows an employer to
escape vicarious liability if it proves “(1) that the
employer exercised reasonable care to prevent and promptly
correct harassing behavior and (2) that the plaintiff
employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the
employer, or to avoid harm otherwise.” Faragher v.
City of Boca Raton, 524 U.S. 755, 807 (1998). According
to plaintiffs, the defense is not available here because, (1)
as to the first prong - the defendants appointed Dr. Johnson
as Medical Director even though he had a “reputation
for sexually inappropriate behavior in the workplace”
and had previously been sued for sexual harassment, doc. 138
at 65; failed to train Dr. Johnson and the management team of
the Surgery Center on the sexual harassment or retaliation
policy, id. at 66; and conducted flawed
investigations, id. at 68; and, (2) as to the second
prong - plaintiffs contend that they acted reasonably by
utilizing SCA's procedures to report Dr. Johnson,
id. at 73.
are factual disputes regarding both the adequacy of
defendants' preventative and remedial measures and the
reasonableness of plaintiffs' steps to purportedly
protect themselves. For example, both Anderson and Lackey
resigned before Dr. Johnson returned from his mandated leave
of absence. This fact supports an argument that they did not
give SCA's 2011 remedial measures an opportunity to work.
Likewise, as to whether SCA exercised reasonable care to
prevent harassment, SCA has a sexual harassment policy,
see doc. 140-58 at 16- 17, which it disseminates to
each new employee in a Teammate Handbook, including during
the relevant period. Although “an employer's
showing that it has a sexual harassment policy does not
automatically satisfy its burden, ” Frederick v.
Sprint/United Mgmt. Co., 246 F.3d 1305, 1314 (11th Cir.
2001), evidence of such a policy helps the employer meet its
burden unless the employer “entirely failed to
disseminate that policy, ” Faragher, 524 U.S.
at 808. See also Swindle v. Jefferson County
Comm'n, 593 F.App'x 919, 923 (11th Cir. 2014)
(“[A] formal anti-harassment policy is some proof that
the employer exercised reasonable care to prevent harassing
after the 2010 complaints, Lynne Hammack promptly initiated
an investigation during which she interviewed various
employees and arranged for employees to take anonymous
surveys to describe the work environment. See docs.
140-55 at 8-10; 140-6 at 2; Baldwin v. Blue Cross/Blue
Shield, 480 F.3d 1287, 1304 (11th Cir. 2007) (“All
that is required of an investigation is reasonableness in all
of the circumstances. . . .”). There is also evidence
that SCA's Regional Vice President counseled Dr. Johnson,
see doc. 140-55 at 9, and the Eleventh Circuit has
stated that “warnings and counseling of the harasser
are enough where the allegations are substantiated.”
Baldwin, 480 F.3d at 1305 (citing Fleming v.
Boeing Co., 120 F.3d 242, 246-47 (11th Cir. 1997)).
Finally, the record contains evidence that both the 2010 and
2011 investigations had at least some remedial effect.
See docs. 140-31 at 142, 150-51. In sum, “even
if the process in which an employer arrives at a remedy in
the case of alleged sexual harassment is somehow defective,
the defense is still available if the remedial result is
adequate.” Baldwin, 480 F.3d at 1305 (citing
Walton v. Johnson & Johnson Servs., 347 F.3d
1272, 1288 (11th Cir. 2003)).
of these reasons, plaintiffs' motion as to the
Faragher-Ellerth defense is due to be denied.
Statute of Limitations
contend that there is “no record evidence to
support” defendants' contention that some of
plaintiffs' claims are time-barred. Doc. 138 at 75. The
court disagrees, in part. Plaintiffs filed this lawsuit on
February 21, 2012, see doc. 1, and except for their
assault and battery claims, which have a six-year limitations
period, see Ala. Code § 6-2-34(1) (1975), a
two-year limitations period applies to all of their claims.
Because the record shows that at least some of Anderson's
allegations predate 2010, see, e.g., doc. 140-31 at
91, 96 (Anderson told the compliance hotline in January 2010
that Dr. Johnson had kissed her, pulled her hair, written a
“sex word of the week” on the PACU calendar, and
choked her), defendants are entitled to raise this
affirmative defense as to at least some of Anderson's
claims at trial. The court agrees, however, that the statute
of limitations defense does not apply to any of Lackey's
claims, as Lackey began her employment in June 2010.
See doc. 145-2 at 14.
“Like or Related Claims, ”
Laches/Waiver/Estoppel/Unclean Hands, and “Same Action
Regardless of Impermissible Motive”
the entity defendants' remaining affirmative defense,
plaintiffs offer no specific arguments and state instead that
defendants have not met their burden. See doc. 138
at 76-78. Because “[a] party seeking summary judgment
has the initial responsibility of informing the Court of the
grounds for its motion and specifically identifying those
portions of the pleadings, depositions, answers to
interrogatories, admissions on file, and any affidavits that
it believes demonstrate the absence of a genuine issue of
material fact, ” Miller v. Bed, Bath &
Beyond, Inc., 185 F.Supp.2d 1253, 1257 (N.D.
Ala. 2002) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)), and plaintiffs have not made this
showing, their motion is due to be denied as to these
Dr. Johnson's ...