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Flynn v. CB&I Maintenance, LLC

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

July 30, 2018

CB&I MAINTENANCE, LLC and CB&I, LLC, Defendants.



         This matter is before the court on Defendants' Motion for Summary Judgment and Brief in support thereof (Doc. 89 and 89-1, respectively), Plaintiff's Response in opposition thereto (Doc. 91), and Defendants' Reply (Doc. 99). For the reasons explained below, the Court finds that Defendants' motion for summary judgment should be GRANTED.


         This action arises as a result of Plaintiff, Christin Seals Flynn's (“Flynn”) termination of employment with Defendants, CB&I Maintenance, LLC and CB&I LLC (collectively “Defendant” or “CB&I”). CB&I Maintenance, LLC provides warehousing services to UOP/Honeywell (“Honeywell”) at Honeywell's warehouse located in Saraland, Alabama pursuant to a contract between CB&I and Honeywell. (Doc. 89-1 at 5). The Saraland warehouse distributes products manufactured by Honeywell. Honeywell Material Analyst Gregory Hendricks (Hendricks) plans the daily activities at the Saraland warehouse, but CB&I hires employees to execute Honeywell's plans and assigns duties requested by Honeywell. (Id.)

         Plaintiff applied for a position with Defendant CB&I Maintenance to be the Assistant Warehouse Supervisor at Defendant's facility located in Saraland, Alabama in October, 2014. (Doc. 1 at 2)[1]. The position was to supervise approximately fifteen (15) warehouse employees, to operate a forklift loading and unloading materials, and to assist in maintaining inventory. (Id.) Plaintiff was hired on October 6, 2014 and began work on October 20, 2014. (Doc. 89-3 at 3). The job had a 90-day orientation period. (Id. at 74).[2] Once hired, Plaintiff's immediate supervisor was Spencer Kunath (“Kunath”) the Warehouse Supervisor and Kunath's immediate supervisor was Tim Beasley (“Beasley”) the Warehouse Production Supervisor. (Doc. 1 at 2). From the time she was hired until her termination, Plaintiff was never informed that her work was unsatisfactory. (Id. at 3). On two occasions Plaintiff's work was rewarded; once, with a twenty-five-dollar gift card and once, with a flashlight. (Id.)

         In the early afternoon of January 9, 2015, Plaintiff, while on the way to the restroom, walked passed the breakroom where three employees, Kenyell Thomas (“Thomas”), Tim Taylor (“Taylor”), and Chris Hood (“Hood”) were engaged in a very loud conversation which Plaintiff believed to be an argument or debate of some kind. (Id.) Thomas stopped Plaintiff and said he wanted her opinion regarding a rumor and then stated in a loud voice, “We are going to get your opinion” and “If a man was accused of rape would you still let him babysit your daughter?” (Id. at 4). Plaintiff ignored Thomas and continued walking at which point Thomas persisted “No, I'm serious. I want you to tell [Taylor] what your opinion is.” (Id.) Plaintiff responded, “My God ya'll” in an effort to end the conversation and turned to leave the room.” (Id.) Thomas again persisted and in an aggressive tone[3] continued, “No, I'm serious”, “Now everybody knows Tim likes you and wants to fuck you.” (Id.) Thomas then turned to Taylor and said “If I told you that Christin had AIDS would you still f*ck her?” (Id.) Plaintiff was “stunned” and tried to leave which caused Thomas to become more animated and to again loudly repeat his question to Taylor. (Id.) Plaintiff then told Thomas that he needed to stop speaking in that language, that it was inappropriate in the workplace, and that she did not appreciate him using her in his question to Taylor. (Id.) Taylor also stated that he did not appreciate the remark. (Id.) Hood, who had been in the room when the comments were made shook his head and left the room. (Id.)

         Plaintiff felt she had a duty to report the conversation and immediately reported Thomas' comments to Kunath by stating something to the effect of “Look, something has happened. I need to bring it to your attention. I don't know how you handle things like this but this needs to be addressed immediately” and then described the conversation (as stated above). (Id. at 4-5). According to Plaintiff, Kunath seemed frustrated and/or annoyed and responded only by stating “okay”. (Id. at 5). Taylor also reported the conversation to Kunath. (Id.) Kunath spoke with Thomas the same day about his comments to Plaintiff and Taylor. (Doc. 89-6 at 31).

         At some point later in the afternoon, Thomas approached Plaintiff and said something to the effect of “Look, I didn't know it was going to offend you.” (Doc. 1 at 5). Plaintiff responded that “We are not going to have this in the workplace”, but found Thomas' behavior to be aggressive and his apology disingenuous. (Id.) Afterwards, Taylor approached Plaintiff and told her that she did the right thing by reporting the conversation to Kunath, but he feared that Plaintiff might consequently suffer. When Plaintiff asked what Taylor meant, he replied “Well, Kenyall [Thomas] is like a pet around here. But if they fire you they will be wrong.” (Id.)

         Kunath did not memorialize or report the January 9, 2015, incident to Human Resources or to any supervisor contemporaneously with the incident. (Id.) Later in the afternoon, however, Kunath drafted a memorandum describing Plaintiff's and Taylor's reporting the conversation to him, his conversations with Thomas about the problem with his remarks, and Thomas' apologizing for his actions. (Doc. 89-6 at 26-27, 31).

         On the morning of Tuesday, January 13, 2015[4], the second work day following the incident, Plaintiff was told by an employee that Kunath wanted to speak with Plaintiff in the office and when Plaintiff went to the office, Kunath and Beasley were present and informed her that, “After further evaluation, we do not think your employment here at CB&I is going to work out.” (Id.) Plaintiff responded, “you're joking right? What made you come to this decision?” and stated that she had done her job and felt that she had excelled. (Id. at 6). Kunath asked for Plaintiff's badge and told her to gather her belongings and return to the office. (Id.) Plaintiff was asked to sign a to-be-written termination letter stating that the job was bigger than Plaintiff could perform, that the employer was dissatisfied with her performance, and that Plaintiff was unable to perform her job duties. (Id.) Plaintiff refused to sign the described letter and was then given a form to sign that was described as an acknowledgment of termination of employment. (Id.) Plaintiff signed the document which stated the reason for separation as “Job is bigger than EE can perform. EE is not the right person for the job. Client is not happy with EE performance.” (Doc. 89-4 at 29). The notice included a performance review where Plaintiff was rated one to five in several performance categories, five being the highest. (Id.) Plaintiff was given a five in safety, attendance, dependability, and cooperation; a three in initiative; and a two in job knowledge, quality of work, and productivity. (Id.)

         Prior to January 13, 2015, Plaintiff's job performance was discussed between Kunath, Beasley, Hendricks, Rhonda Valliant[5], and Angela Hardee (“Hardee”)[6]. (Doc. 89-6 at 2-4; Doc. 91-4 at 20). In November, 2014, Hendricks complained to Kunath about the amount of time it took Plaintiff to load a flatbed full of barrels with the fork lift. (Doc. 89-1 at 8-9; Doc. 89-6 at 6). Also, in November, Kunath - referring to using the forklift - commented to Plaintiff that she needed to “speed it up.”[7] (Doc. 89-3 at 20). Hendricks also complained of Plaintiff to Kunath on two occasions for her failure to accurately count inventory. (Doc. 89-5 at 8). Prior to her termination, Kunath also received a complaint against Plaintiff from another employee, Melanie Turner (“Turner”), relating to Plaintiff's handling of a situation with another employee that resulted in the other employee being very upset and crying. (Doc. 89-4 at 27). According to Kunath, on January 9, 2015, between 6:00 a.m. and 9:00 a.m., Hendricks complained to him about Plaintiff and expressed concerns that Plaintiff should be more knowledgeable about the daily functions of the warehouse as an assistant warehouse supervisor. (Doc. 89-6 at 21, 35). The same morning, Kunath spoke with Angela Hardee about Plaintiff's performance and Hardee expressed that Plaintiff's performance was deficient because of issues with counting inventory, mislabeling shipments, leading others, and her inability to understand instructions provided to her during on-the job training. (Doc. 89-7 at 2). Following his conversation with Hendricks and Hardee, Kunath drafted a memorandum relating to Plaintiff's performance issues that included Hendricks' comment that CB&I needed to find someone “who can handle the job.” (Doc. 89-6 at 35).

         On January 12, 2015, Kunath contacted Human Resource Manager Rhonda Valliant and Beasley and notified them of Hendricks' and Hardee's complaints relating to Plaintiff's performance. (Doc. 89-6 at 2-3). He also attached a copy of his memorandum relating to Plaintiff's performance concerns to an email he sent to Valliant on January 12, 2015. (Doc. 89-6 at 33). Kunath, Valliant, and Beasley discussed Plaintiff's employment and Kunath recommended Plaintiff's termination, which was accepted and approved by Valliant and Beasley. (Doc. 89-6 at 23). Neither Beasley nor Valliant was aware of the incident between Plaintiff and Thomas at the time they decided to terminate Plaintiff. (Doc. 89-4 at 5; Doc. 89-6 at 14). Beasley testified that prior to Plaintiff's termination, Hendricks also told him that he wanted Plaintiff removed from her position. (Doc. 99-8 at 2). As part of the investigation of Plaintiff's claims, Hendricks provided a statement to the Equal Employment Opportunity Commission (“EEOC”) and was deposed. (Doc. 91-2, generally; Doc. 91-2 at 28-29). Both his statement and his deposition testimony indicate that Hendricks never requested that Plaintiff be terminated. (Id.)

         At the time of Plaintiff's hiring and termination, CB&I had a policy that addressed harassment and sexual harassment. Section III of the company policy defines “sexual harassment” in part as verbal conduct of a sexual nature where such conduct has the effect of “creating an intimidating, hostile or offensive work environment.” (Doc 91 at 18-19; Doc. 91-5 at 121). The term “harassment” is defined in the policy as including “verbal” conduct that creates an intimidating, offensive or hostile working environment. (Doc. 91-5 at 121). Harassment is defined to include remarks made for the purpose of belittling or insulting someone on the basis of, among other things, sex or gender or on any other applicable protected basis. (Id.) The policy makes it mandatory for an employee who encounters workplace harassment or discrimination from any person or from co-workers to immediately report the conduct to management. (Id.) Defendant also had a code of conduct listing procedures for the prevention of harassment, discrimination and retaliation in the workplace. (Id. at 122). Under Section 1.2, “Harassment” is defined as the “unwanted and bothersome actions of one party or group towards another, including threats and demands that are generally considered offensive, intimidating and/or disturbing. This may be systemic and/or continued or a singular event, if sufficiently severe or hostile” (emphasis added). (Id.) There is no dispute that these policies were in effect or that Plaintiff was made aware of them prior to January 13, 2015. (Doc. 91 at 4; Doc. 89-3 at 11-17).


         A. Summary Judgment Standard

         Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted: “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.” The trial court's function is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; there must be ‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.' ” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, at 249-250. (internal citations omitted).

         The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the court must view all evidence in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).

         Once the movant satisfies his initial burden under Rule 56(c), the non-moving party "must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the non-movant must “demonstrate that there is indeed a material issue of fact that precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party “may not rely merely on allegations or denials in its own pleading; rather, its response .... must be by affidavits or as otherwise provided in this rule be set out specific facts showing a genuine issue for trial.” Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere ‘scintilla' of evidence supporting the [non-moving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). “[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal quotation and citation omitted).

         B. Sexual Harassment[8]

         Plaintiff has not specifically identified a claim for sexual harassment in her Complaint. However, the Complaint does include a Preliminary Statement which states “Plaintiff files this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq., seeking declaratory, injunctive and equitable relief; back pay, reinstatement, front pay, compensatory and punitive damages; and costs and attorney's fees for sexual harassment and retaliation suffered by Plaintiff as a result of her employment with Defendant.” (Doc. 23 at 1). Based on the same, Defendant seeks dismissal of any claim of sexual harassment that has been alleged because Plaintiff has not presented any facts to support such a claim. More specifically, Defendant asserts dismissal is warranted because Plaintiff has not shown that the comments at issue were directed at her based on her gender and because the comments made were not sufficiently severe or pervasive so as to create a hostile work environment in violation of Title VII. (Doc. 89-1 at 15-20). Alternatively, Defendant argues that if Plaintiff has established a prima facie case of ...

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