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Anderson v. Surgery Center of Cullman, Inc.

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

March 31, 2017

DANA ANDERSON, et al., Plaintiffs,
v.
SURGERY CENTER OF CULLMAN, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         The 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 141.[1] 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.

         A. The entity defendants' affirmative defenses

         Plaintiffs seek summary judgment as to the entity defendants' Faragher-Ellerth, administrative prerequisites, [2] 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.

         1. Faragher-Ellerth

         The 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.

         There 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 behavior.”).

         Moreover, 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)).

         For all of these reasons, plaintiffs' motion as to the Faragher-Ellerth defense is due to be denied.

         2. Statute of Limitations

         Plaintiffs 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.

         3. “Like or Related Claims, ” Laches/Waiver/Estoppel/Unclean Hands, and “Same Action Regardless of Impermissible Motive”

         As to 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 defenses.

         B. Dr. Johnson's ...


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