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Simmons v. Frank Norton, LLC

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

July 27, 2017

FRANK NORTON, LLC, d/b/a Milo's Hamburgers,, Defendants.



         This matter is before the court on the motions for summary judgment filed by Defendants, Frank Norton, LLC, d/b/a Milo's Hamburgers (“Milo's”), and Kenneth Nelson (“Nelson”). (Docs. 23, 26). In her amended verified complaint, Plaintiff asserts four claims against Milo's: race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count One); disparate treatment on the basis of race in violation of 42 U.S.C. § 1981 (Count Two); creation of a “hostile work environment” based on sexual harassment in violation of Title VII (Count Three); and negligent hiring, training, supervision, or retention (Count Four). (Doc. 4).[2] Plaintiff asserts four additional claims against Nelson: assault (Count Five); battery (Count Six); invasion of privacy (Count Seven); and outrage (Count Eight). (Id.). The motions are fully briefed and ripe for adjudication. (Docs. 29, 30, 33, 34). For the reasons discussed below, the motions are due to be granted in part and denied in part.


         Plaintiff is a white female who began working for Milo's on June 8, 2008. (Doc. 23 at 2). She was assigned to the restaurant chain's Gardendale location. (Id.). In September 2010, Plaintiff took maternity leave. (Id.). Prior to taking maternity leave, Plaintiff was subjected to numerous inappropriate sexual comments from a manager named Ryland. (Id. at 7). Plaintiff reported these comments to Louise McDaniel, Milo's human resources manager at the time, and McDaniel investigated. (Id. at 8). Plaintiff states nothing happened after she reported Ryland except that she was “shamed” and “talked about, ” and she drew the conclusion that following Milo's reporting policy would not do any good. (Docs. 29 at 13; 24-1 at 82). After her maternity leave, Plaintiff returned to work at the Gardendale location in August 2011, and was awarded a raise of $1.00 per hour. (Doc. 23 at 2).

         On August 20, 2011, Plaintiff completed a “sign-off” sheet, which included the following language:

I have read and understand Milo's Hamburgers policy on the prevention of Sexual Harassment…. I understand Milo's Hamburgers prohibits any form of harassment of our employees, whether such harassment is lawful or unlawful. It is never justifiable to harass one of our employees because of the employee's race, color, sex, sexual orientation, weight, religion, national origin, age, disability or any other reason. As a condition of my employment by Milo's Hamburgers, I agree to adhere to the Policy.
I hereby acknowledge receipt of ‘WHAT EVERY MILO'S EMPLOYEE SHOULD KNOW.' All pages of this policy have been reviewed by me. I understand and agree to abide by these rules and guidelines during my employment with Milo's.

(Id.; see also Doc. 24-3 at 2). The parties disagree about what constitutes Milo's harassment policy. Milo's contends it refers to a statement that was posted in the Gardendale location and gives specific instructions for reporting sexual harassment, including the following:

The Company will not tolerate you being harassed. You must not tolerate it either. If you believe that you are being harassed, immediately report the matter to Louise McDaniel, Director of Human Resources, at (205) 965-0208. If you should feel uncomfortable reporting the problem to Louise McDaniel, then report it to Tom Dekle (205-410-5131). The management in the General Office will fairly and promptly investigate every sexual harassment complaint. Proven offenses will result in disciplinary action up to and including dismissal, and may lead to personal, legal, and financial liability.

(Doc. 23 at 3; see also Doc. 24-4).

         The document titled “WHAT EVERY MILO'S EMPLOYEE SHOULD KNOW” restates the general prohibition against harassment. The first page of this document states, “You may confront the harasser if you feel comfortable doing so, or report the harassment to your manager or an appropriate human resource manager.” (Doc. 31-6 at 1). Page two recommends reporting harassment to “the human resource manager, your department head, or a supervisor.” (Id. at 2). Page three instructs the employee to “promptly contact your immediate supervisor, your supervisor's supervisor, the human resource manager, or any appropriate corporate officer or company representative.” (Id. at 3).

         Plaintiff alleges the harassment policy consists of other documents as well, which do not contain the same instructions for reporting harassment. (Doc. 29 at 3; see also Doc. 31-6). For example, a document titled “The Sexual Harassment Policy” states:

Sexual harassment will not be tolerated and will result in disciplinary action, including possible termination. If you feel that you are being subjected to sexual harassment, promptly contact your immediate supervisor, your supervisor's supervisor, the human resource manager, or any appropriate corporate officer or company representative.

(Doc. 31-6 at 4).

         In September 2012, Nelson was transferred to the Gardendale location to work as an assistant general manager. (Doc. 23 at 8). Plaintiff alleges Nelson began harassing her almost immediately, subjecting her to inappropriate sexual comments as well as physical contact. (Id. at 8-9). Plaintiff states that prior to May 7, 2013, she informed Milo's corporate employee Rob Litton that there was “some stuff going on” at the Gardendale store and she didn't want to go to work, but there was no follow-up from Milo's. (Doc. 29 at 4; see also Doc. 24-1 at 81). Though she did not say so to Litton, Plaintiff testified this conversation related to her problems with Nelson. (Doc. 24-1 at 81). Milo's contends it was not aware of Nelson's conduct until Plaintiff, through her attorney, reported it on May 7, 2013. (Doc. 23 at 9). It is undisputed Plaintiff herself did not report Nelson's conduct to either Louis McDaniel or Tom Dekle until that date.

         Milo's contends Plaintiff never told Nelson to stop his behavior and did not tell him that it made her uncomfortable. (Doc. 23 at 10). However, Plaintiff has offered testimony disputing this contention. Plaintiff's coworker, Christina Armstrong, testified to having overheard Plaintiff telling Nelson that his behavior was unwanted. Specifically, she testified that Plaintiff told Nelson on five or six occasions his conduct was unwanted, stating, “you need to stop, this isn't right, I don't appreciate it.” (Doc. 24-18 at 11, 24). Also, when Nelson would go out of his way to inappropriately touch Plaintiff, Plaintiff would “would always further herself from him and walk away.” (Id. at 11). According to Armstrong, Nelson harassed her as well. (Id. at 4). Armstrong told Plaintiff she reported Nelson's harassment but “was pretty much blown off, ” except “there was a new piece of paper on the bulletin board” the next day. (Id.).[3] Armstrong's hours were cut when she reported Nelson's harassment, and she told Plaintiff that Milo's did “[n]ot an F'ing thing about it.” (Doc. 29 at 6).

         Plaintiff's counsel sent a demand letter to Milo's on May 7, 2013, informing Milo's of Nelson's conduct. (Doc. 24-13). Regarding the time between when the harassment started and Plaintiff reported it, Plaintiff stated she did not feel comfortable going to Louise McDaniel about Nelson's conduct given the way McDaniel handled Plaintiff's reports about Ryland's harassment in 2010. (Id.). Plaintiff also stated her attorney influenced the timing, in that he was “going to handle everything, so [she] didn't have to do it, ” and she “didn't have any control” over when he reported the harassment to Milo's. (Id.; Doc. 24-1 at 41-42). She stated she did not confront Nelson directly about his harassment because she was scared. (Doc. 24-1 at 42). Instead, Plaintiff made recordings of her conversations with Nelson between February 9, 2013, and March 30, 2013. (Doc. 28-1 at 36). When asked when she expected to stop making her daily recordings, Plaintiff stated she would stop “[w]hen it was over, ” meaning when she was out of “the danger zone of somebody believing me, that it really happened.” (Doc. 24-1 at 41).

         Nelson, in his motion for summary judgment and evidentiary filings, contends he and Plaintiff had a friendly relationship. (Doc. 27 at 2). As a general matter, Plaintiff disputes this. (Doc. 30 at 3). Nelson points to their text message and Facebook message exchanges. (Docs. 28-3, 28-4). Regarding Facebook, Plaintiff contends she was connected with Nelson on that platform for a brief time, but shortly thereafter she blocked his account because he sent her pornography. (Doc. 28-1 at 22-23). As for their text messages, Plaintiff and Nelson did communicate via text at least intermittently during January and February 2013, and the messages indicate Plaintiff and Nelson also spoke over the phone. (Doc. 28-4). These exchanges are brief, and the majority of them are work-related. The messages are neither unfriendly nor overly familiar. (Id.).

         On June 27, 2013, Louise McDaniel prepared a termination report for Nelson based upon his conduct. (Doc. 31-5). The report indicates Nelson misled management in an investigation and violated company policy by making inappropriate sexual comments to Plaintiff in the workplace. (Id. at 3). The report notes Nelson initially denied ever making any inappropriate sexual remarks. (Id.). However, Plaintiffs audio recordings are quoted in the report as containing at least the following statements:

• “You walking and smoking is sexy as hell - that's just sexy.”
• “I'm all for getting that ass fat. I'm working with you not against you on that.”
• In response to Plaintiffs comment that she was tired and was up late, Nelson suggested she “[got] that ass knocked out last night.”
• In response to Plaintiffs comment that she needed to concentrate, Nelson made a comment about her getting “that ass beat down.”

(Id.). When confronted with the report, Nelson was given an option to resign or be terminated. He chose to resign. ...

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