United States District Court, N.D. Alabama, Southern Division
PRISCILLA D. SIMMONS, Plaintiff,
FRANK NORTON, LLC, d/b/a Milo's Hamburgers,, Defendants.
MEMORANDUM OPINION AND ORDER 
G. CORNELIUS U.S. MAGISTRATE JUDGE
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). 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.
BACKGROUND AND RELEVANT FACTS
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).
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).
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).
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).
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
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.). 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).
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).
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
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