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Whitford v. Sub-Line Associates, Inc.

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

July 21, 2017

DESIRE WHITFORD, Plaintiff,
v.
SUB-LINE ASSOCIATES, INC. Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the court on “Defendant's Renewed Motion for Judgment as a Matter of Law; or, in the Alternative, Motion for Remittitur; or, in the Alternative, Motion for a New Trial.” (Doc. 61). The Plaintiff filed a response. (Doc. 64). For the reasons stated in this Memorandum Opinion, the court WILL DENY all three motions.

         A. RENEWED JMOL 50(b)-DOC. 61

         The Defendant, Sub-Line Associates, Inc., brings this motion pursuant to Rule 50(b), [1] and renews its motion under Rule 50(a) made during the trial of this case. The court had granted in part and denied in part Sub-Line's original motion for judgment as a matter of law, granting the motion as to the FLSA claim, and denying the motion as to all other claims. This case was tried before a jury from February 27-March 2, 2017. The court entered a final judgment (doc. 56) on March 6, 2017 in accordance with the following jury verdict: verdict in favor of the Plaintiff, Desire Whitford, and against Sub-Line on the claims of sexual harassment brought pursuant to Title VII; hostile work environment brought pursuant to Title VII; retaliation based on complaints of sexual harassment brought pursuant to Title VII; invasion of privacy; assault and battery; and negligent supervision, training, and/or retention. However, the jury found for Sub-Line on the claim for wanton supervision, training and/or retention. The jury awarded damages to Ms. Whitford as follows: $1, 956 in lost wages, $30, 000 for emotional pain and mental anguish, and $100, 000 in punitive damages. (Doc. 55). Sub-Line's renewed Rule 50(b) motion requests that this court set aside the verdict and judgment in favor of Ms. Whitford and enter a judgment in favor of Sub-Line as a matter of law on all of the Plaintiff's claims. See Fed. R. Civ. P. 50 (a) & (b).

         In its 50(b) motion, Sub-Line raises the following issues: (1) whether the evidence was sufficient to support Sub-Line's liability on the tangible job action sexual harassment claim, because it says Heather Brown made the decision to terminate her and not James Connison, the alleged harasser; (2) whether the evidence was sufficient to support Sub-Line's liability on the hostile work environment claim, because it says Sub-Line had no notice of the harassment and was not vicariously liable for it; (3) whether the evidence was sufficient to support Sub-Line's liability on the retaliation claim, because it says the Plaintiff failed to establish a causal link between her complaints of sexual harassment and the termination; (4) whether the evidence was sufficient to support Sub-Line's liability on the invasion of privacy claim for Mr. Connison's conduct; (5) whether the evidence was sufficient to support Sub-Line's liability on the assault and battery claim for Mr. Connison's conduct; and (6) whether the evidence was sufficient to support Sub-Line's liability on the negligent hiring, training, or supervision claim. The court will address these issues separately below.

         “[I]n ruling on a party's renewed motion under Rule 50(b) after the jury has rendered a verdict, a court's sole consideration of the jury verdict is to assess whether that verdict is supported by sufficient evidence.” Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007). To determine the sufficiency of the evidence, a court considers “all the evidence, drawing all reasonable inferences in favor of the nonmoving party.” Hubbard v. BankAtlantic Bancorp., Inc., 688 F.3d 713, 724 (11th Cir. 2012). However, the court does “not make credibility determinations or weigh the evidence.” Id. Rather, the court “give(s) credence to evidence supporting the nonmoving party's case, as well as ‘uncontradicted and unimpeached' evidence supporting the moving party, ‘at least to the extent that the evidence comes from disinterested witnesses.'” Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (internal quotation marks omitted)).

         A. Tangible Job Action Sexual Harassment

         To succeed in proving discrimination based on sexual harassment resulting in a tangible employment action, Ms. Whitford must have proven by a preponderance of the evidence that Mr. Connison made unwelcome sexual advances toward her; that Mr. Connison took an adverse tangible employment action against her or caused Sub-Line to do so; that Ms. Whitford 's rejection of the unwelcome sexual advances was a motivating factor that prompted Mr. Connison to take the adverse tangible employment action or to cause Sub-Line to do so; and that Ms. Whitford suffered damages because of the adverse tangible employment action. See Pattern Civ. Jury Instr. 11th Cir. 4.8 (2013); 42 U.S.C. § 2000e-2(a); see also Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir. 2004).

         Sub-Line's challenge to the sufficiency of the evidence regarding her termination based on sexual harassment focuses upon the argument that because Heather Brown-not James Connison- made the decision to terminate her, no causal link exists between Mr. Connison's sexual harassment and the termination by Ms. Brown. A plaintiff must establish a causal link between, on one hand, the tangible employment action and, on the other, the discriminatory animus towards the plaintiff based on the sexual harassment and/or the plaintiff's reaction to the harassment. See Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1245-46 (11th Cir. 1998).

         The court notes preliminarily that, although Sub-Line focuses solely on the decision to terminate Ms. Whitford as the adverse employment action, she established another adverse employment action-Mr. Connison took her off the work schedule. Ms. Whitford testified that, after Mr. Connison's sexual harassment of her in the cooler on October 12, 2014, when she rebuffed his unwelcomed advances, he took her off the store's work schedule that he controlled. Although she testified that she was willing to work and continued to ask him and Ms. Brown when she would be placed back on the work schedule, she never worked another day at the Subway store after cooler incident until she was terminated on October 16, 2014. Mr. Connison disputed that he was responsible for taking her off the work schedule, but this disputed evidence was a question of fact for the jury. Ms. Whitford's testimony is legally sufficient to support the jury's finding that Mr. Connison took an adverse tangible employment action against her or caused Sub-Line to do so; that Ms. Whitford 's rejection of the unwelcome sexual advances was a motivating factor that prompted Mr. Connison to take the adverse tangible employment action or to cause Sub-Line to do so; and that Ms. Whitford suffered resulting damage.

         As to termination, Mr. Connison testified at trial that, at the time Ms. Whitford was employed at Subway, he was the manager-in-training for the store where she worked, and he was her boss. Although Mr. Connison gave varying responses when asked whether he was at the meeting when Ms. Whitford learned she was terminated, Mr. Connison consistently and repeatedly testified at trial and in his deposition that he was involved in the decision to terminate Ms. Whitford's employment:

Q. Were you involved in the termination meeting of Ms. - where Ms. Whitford was fired?
A. [Ms. Whitford]: No.
Q. Was it a joint decision amongst you, Ms. Brown, and Ms. Cannon to terminate her?
A. It was up to them, yes.
Q. Was it -were you involved in the decision?
A. Yes.
Q. Okay. So you were involved in the decision to terminate her?
A. Yes.
Q. You were involved in the termination meeting of Ms. Whitford?
A. No.
THE COURT: What do you mean by termination meeting? I want to know what you understand that mean.
THE WITNESS: What I understand is Ms. Cannon and Ms. Brown would have to pull Desire face to face to terminate her.
THE COURT: So when you say you weren't involved in the termination meeting, you're referring to the meeting with Ms. Whitford?
THE WITNESS: Yes.
THE COURT: Thank you. Q. Okay. Line, Page 16, Line 21 of your deposition.
* * * The question, were you in the - were you there involved in the termination meeting and you said what? A. Of Desire?
Q. And my question is, right. What's your answer?
A. Yes.
Q. So it was a joint decision amongst the three of y'all to terminate her. What's your answer?
A. Yes.

         As to the authority he had as manager-in-training, Mr. Connison also testified at trial that he had authority to discipline and “write up” the employees working at his Subway store. And, although he testified that he did not have authority to fire them without going through Heather Cannon and/or Heather Brown, he acknowledged that he did have a “say so” in the firing. He testified in his deposition that Ms. Cannon and Ms. Brown “would generally follow [his] advice” about whether to fire employees at his store, and he acknowledged that deposition testimony at trial.

         Ms. Whitford testified that James Connison was responsible for taking her off the work schedule from the time she rebuffed his sexual advances on October 12, 2014 until she was fired on October 16, 2014. She also testified that he participated in the decision to fire her, being present at the termination meeting with Heather Brown on October 16, 2014; when Heather Brown suggested that Ms. Whitford change stores because she had a problem with Mr. Connison, he stated instead that Ms. Whitford was terminated.

A [Ms. Whitford]: I told [Ms. Brown] I had to talk to her and I did not feel comfortable saying it in front of James because he made everything into a joke. And I didn't feel like this was anything that should have been joked about. I wasn't going to laugh it off anymore. I had had enough. And so she sent him inside. I told her everything that had been going on and so on and so forth and she suggested possibly going to the Boaz or to Guntersville store. Well, then she said, well, I have to . . .let James come out here and tell him what you said. . . . ***
A Her responses [sic] was, well, since you have a problem with James anyway, it would probably be better for you to go to another store.
Q And -
A So James said those are grounds for termination and that was it.
Q And what was the status of your employment at that time?
A At that time I was still working, but -- when James said I was terminated, ...

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