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Pullom v. Greater Birmingham Transportation Services, L.L.C.

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

August 9, 2017

JERMAINE PULLOM and JOHN TIMOTHY WALDREP, Plaintiffs,
v.
GREATER BIRMINGHAM TRANSPORTATION SERVICES, L.L.C. d/b/a YELLOW CAB and KEITH VAN PETTY, Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

         Jermaine Pullom and John Timothy Waldrep allege multiple claims against their former employer, Greater Birmingham Transportation Services, L.L.C. d/b/a Yellow Cab (“GBTS”). Specifically, Pullom asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 for race-based harassment (Counts I and III) and retaliation (Counts II and IV), Title VII claims for sexual harassment and retaliation (Counts V and VI), and a state law claim for negligent and wanton supervision, training, and retention (Count IX), against GBTS. Waldrep asserts a Title VII retaliation claim for opposing sexual harassment against GBTS (Count X), and state law claims for assault and battery against GBTS and Keith Van Petty, his former supervisor (Count XIII), and negligent and wanton supervision, training, and retention against GBTS (Count XIV).[1]

         Presently before the court are defendants' motion for summary judgment, doc. 27, and plaintiffs' motion for partial summary judgment, doc. 28.[2] The motions are fully briefed, docs. 27; 29; 34; 36; 37; 38; 39; 40, and ripe for review. For the reasons stated below, plaintiffs' partial motion is due to be granted, and, except for Pullom's sex harassment claim (Count V), and Waldrep's retaliation claim against GBTS (Count X) and assault and battery claim against Van Petty (Count XIII), defendants' motion is due to be granted.

         I. STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to the non-moving party, who is required to go “beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal citations and quotation marks omitted). A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual dispute will be resolved in the non-moving party's favor when sufficient competent evidence supports that party's version of the disputed facts. But see Pace v. Capobianco, 238 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that a jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         II. FACTUAL BACKGROUND

         A. Pullom

         Pullom, who is male and African-American, worked for GBTS as a porter. Doc. 27-3 at 10. During Pullom's employment, Van Petty, Pullom's immediate supervisor, allegedly made sexual advances toward Pullom “[n]umerous” times, beginning “shortly after [Pullom] started working there” in May 2012. Id. at 11- 12. The first incident occurred during a work trip, when Van Petty purportedly asked Pullom if he wanted to “take a walk on the wild side.” Id. at 13. The second incident occurred when Pullom was “bent over in a car helping one of the mechanics, ” and Pullom's “pants [were] down, ” and Van Petty “told [Pullom] to pull [his] pants up before [Van Petty] [stuck] something back there.” Id. at 14. On another occasion, when Van Petty encountered Pullom in the restroom, Van Petty told Pullom to quit “jacking off” and asked if Pullom “need[ed] some help with it.” Id. Van Petty also twice remarked to Pullom, in June and October of 2013, that Pullom “would not know if [Van Petty] was a man or a woman” if Van Petty “took his dentures out.” Id. at 17-18. Pullom did not report these comments to anyone in management, except perhaps Susan Whiddon and Mark Little.[3]

         Van Petty also made race-based remarks. For example, Pullom heard Van Petty state that “he's never done a black guy but he'll do a light skinned guy.” Id. at 15. Moreover, when Pullom rode in the car with Van Petty, “if [Van Petty] [was] driving behind a black female and [she] [was] not driving fast enough, [Van Petty] [would] refer to [her] as a nappy-headed hoe or a nappy-headed bitch.” Id. at 19-20. Additionally, on occasions when Pullom and Van Petty drove together to predominantly African-American neighborhoods to repossess taxi cabs, Van Petty would tell Pullom, “let[']s go down here where your people at, you're better to deal with your people down here in the hood.” Id. at 21. Finally, after Pullom assisted Paige Coker, GBTS's Vice President, with some personal tasks, Van Petty referred to Pullom as Coker's “house nigger.” Id.

         The last comment is the only racial slur Pullom reported to management. Id. at 20. According to Pullom, “Ms. Coker told me that she talked to Mr. Houston [GBTS's President and owner] and I wouldn't have no more problems out of [Van Petty].” Id. at 21. A few months later, on December 4, 2013, Coker discharged Pullom “per Mr. Houston” purportedly because Pullom worked on his personal vehicle at the shop without permission. Id. at 22.

         B. Waldrep

         Waldrep, who is male, worked for GBTS as a service man from October or November 2012 through August 2013, and later as a heavy line mechanic from June 2014 through September 21, 2014. Doc. 1 at 6. Waldrep claims that Van Petty sexually harassed him during Waldrep's first stint of employment. Allegedly, Van Petty affixed pictures of male genitalia to Waldrep's toolbox twice. Doc. 27-4 at 11. On another occasion, Van Petty purportedly told Waldrep, “pull your britches up, boy, before I stick something in you.” Id. at 14. Van Petty also stuck an “air hose” inside Waldrep's shirt while threatening to “stick something” in Waldrep. Id. Waldrep resigned due to this purported conduct, id. at 11, albeit without complaining about this conduct to anyone in management. See docs. 27-4 at 11 (claiming he reported the conduct to Mark Little, who did not have the title of “supervisor” “at the time”); 30-11 at 10 (Little's testimony that he was “the same thing [Waldrep] was, a heavy line mechanic, ” at the time).

         Waldrep returned to GBTS in June 2014 after Little, who by then was a shop supervisor, see doc. 30-11 at 12, assured Waldrep that he would not have to deal with Van Petty, doc. 27-4 at 13. However, when Waldrep returned, Van Petty was “still in the office in the shop.” Doc. 27-4 at 13. On August 28, 2014, after Van Petty directed an “mmm, mmm, mmm” noise at Waldrep, Waldrep reported this incident to GBTS's bookkeeper, Tammy Phillips, and also told Phillips that Van Petty had taped pictures of male genitalia to Waldrep's toolbox during Waldrep's first employment stint. See doc. 27-4 at 17.

         Sometime after this complaint, Van Petty directed the “mmm, mmm, mmm” sound toward Waldrep again, and Waldrep again complained to Phillips. Id. According to Phillips, Waldrep told her also that if GBTS discharged him, he would submit the genitalia pictures to the Equal Employment Opportunity Commission to assist Pullom with his pending harassment case against GBTS. See doc. 30-10 at 10. After this conversation, Phillips informed Coker, who was off-site at the time, that Waldrep had threatened the company with disclosure of the pictures. See doc. 30-8 at 37. When Coker shared this alleged threat with Houston, Houston instructed Coker to discharge Waldrep immediately. Coker, in turn, conveyed the directive to Little, id. at 32, who met with Waldrep and discharged him for “insubordination” for using his cell phone while working on vehicles, doc. 24-4 at 18. Allegedly, Little added that the real reason was “something about going to Tammy about the pictures that were on [his] toolbox.” Id.

         III. ANALYSIS

         The analysis is divided into two primary parts. In Section A, because it is a threshold issue that concerns this court's jurisdiction, the court will address plaintiffs' motion for partial summary judgment as to GBTS's affirmative defense that it employed less than 15 individuals and, therefore, was not an “employer” under Title VII. See doc. 28. Because the court finds that plaintiffs have established that GBTS is an “employer” under Title VII, in Section B, the court will address GBTS's motion for summary judgment.

         A. Plaintiffs' Motion for Partial Summary Judgment

         In its seventh affirmative defense, GBTS states: “These Defendants deny that [GBTS] has the requisite number of employees to be subject to the federal statutory claims made the basis of Plaintiffs' complaint.” Doc. 6 at 18. “In the Eleventh Circuit, the issue of whether an employer has fifteen Title VII ‘employees' is a ‘jurisdictional' question: [A] plaintiff must show that her ‘employer' had fifteen or more employees for the requisite period provided under the statute before her Title VII claims can be reached.” Laurie v. Ala. Court of Crim. Appeals, 256 F.3d 1266, 1271 (11th Cir. 2001) (citation and internal quotation marks omitted). Plaintiffs attempt to make this showing under the “single employer” or “integrated enterprise theory, ”[4] by aggregating the number of W-2 employees at GBTS with those of affiliated entities Greater Little Rock Transportation Services, L.L.C., Gulf Coast Transit Services, L.L.C., and Winston-Salem Yellow Cab, L.L.C. See doc. 29.

         “The predominant trend in determining whether two businesses should be treated as a single or joint employer under [42 U.S.C.] § 2000e(b) is to apply the standards promulgated by the National Labor Relations Board (NLRB).” McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir. 1987). Based on the NLRB factors - (1) common ownership, (2) common management, (3) interrelation of operations, and (4) common control of labor relations, id. - which the court addresses below, plaintiffs have met their burden of showing single or joint employer status.

         1. Common ownership

         There is sufficient evidence to find that GBTS and the other entities had overlapping ownership during the relevant period. Specifically, Houston owned a 60% interest, Martin Zilber owned a 35% interest, and Paige Coker owned a 5% interest in GBTS and Greater Little Rock. Doc. 27-5 at 6, 9. Houston also owned a 34% interest in Gulf Coast Transit, along with Zilber, who owned 32%, and Michael Levine, who owned 34 percent. Id. ...


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