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Avila-Zavala v. Sexton

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

September 5, 2019

JUAN DIEGO AVILA-ZAVALA, Plaintiff,
v.
DONALD WAYNE SEXTON, ET AL., Defendant.

          MEMORANDUM OPINION

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         This action arises out of alleged sexual harassment Juan Diego Avila-Zavala suffered at the hands of his supervisor, Donald Wayne Sexton, while working at the Maxine Pratt Mine. Zavala contends that his employers did nothing to stop the harassment and eventually discharged him after he complained. Zavala asserts claims against his former employers and several individuals under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq, Section 1981 of the Civil Rights Act of 1866 as amended, 42 U.S.C. § 1981, and Alabama state law. Doc. 38.[1] The defendants have moved for summary judgment on all claims except the assault and battery claim against Sexton, arguing that Zavala cannot establish any of those claims or that the Corporate Defendants may be liable for Sexton's alleged misconduct. Docs. 59; 62. For the reasons discussed below, the court finds there are material questions regarding the invasion of privacy claim against Sexton, whether Alaco and Cordova are liable for Sexton's conduct, and whether the defendants' response to the alleged assaults was adequate. Accordingly, the motions for summary judgment are due to be denied as to the invasion of privacy claim against Sexton, and the assault and battery, invasion of privacy, negligent hiring and retention, and negligence/wantonness claims against Cordova and Alaco. The motions are due to be granted in all other respects.

         I. MOTIONS TO STRIKE AND TO HAVE MATTERS DEEMED ADMITTED

         Before addressing the motions for summary judgment, the court turns to Zavala's motion to have matters deemed admitted, doc. 69, and the parties' motions to strike evidence they rely on in support of or in response to the motions for summary judgment, docs. 70, 81, 82, 87.

         A. Zavala's Motion to Have Matters Deemed Admitted

         Zavala asks this court to deem certain matters admitted against the Prospect Mining Defendants and Bryant based on their alleged failure to respond to requests for admissions. Doc. 69. Under Rule 36 of the Federal Rules of Civil Procedure, “[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Fed.R.Civ.P. 36(a)(3). In that respect, Zavala contends that he served his requests for admission by email on October 19, 2018 and that the Prospect Mining Defendants and Bryant failed to respond within thirty days. Doc. 69 at 2. The Prospect Mining Defendants and Bryant argue that they did not receive the requests when Zavala purportedly served them and that service by email was not proper. Doc. 77 at 2-3. Indeed, Rule 5(b) does not provide for service by email unless a party consents to it in writing, see Fed. R. Civ. P. 5(b), and nothing in the record indicates that these defendants consented to receiving service by email, see doc. 17. Moreover, Zavala did not dispute the defendants' contention that they did not actually receive the discovery requests until December 5, 2018, and that they served their objections within thirty days thereafter. See docs. 77 at 3-4; 77-1 at 2-4, 7-12. Thus, Zavala's motion to have matters deemed admitted is due to be denied.

         B. The Parties' Motions to Strike

         Because motions to strike summary judgment evidence are no longer appropriate, see Fed. R. Civ. P. 56(c)(2) advisory committee's notes (2010 amendments); Campbell v. Shinseki, 546 Fed.Appx. 874, 879 (11th Cir. 2013), the court construes the motions as objections to the evidence. Under Rule 56(c)(2), “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence, ” and “[t]he burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Fed.R.Civ.P. 56(c)(2) advisory committee's notes (2010 amendments).

         1. Zavala's objections

         Zavala objects to the Prospect Mining Defendants' and Bryant's evidentiary submissions on the grounds that those defendants failed to disclose witnesses and documents as required by Rule 26(a) and (e) or to provide timely discovery responses. Docs. 70; 87. Under Rule 26(a), a party must provide the name of all witnesses “likely to have discoverable information . . . that the disclosing party may use to support its claims or defenses” and a copy or description of all documents “the disclosing party has in its possession . . . and may use to support its claims or defenses . . . .” Fed.R.Civ.P. 26(a)(1). “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion . . . or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

         Zavala served Bryant and Warrior with his initial complaint on February 13, 2018, doc. 7 at 11-14, and served Cordova and Prospect Mining with his Amended Complaint on August 13 and 16, 2018, respectively, doc. 40. When Zavala's counsel inquired about the Prospect Mining Defendants' and Bryant's initial disclosures on October 18, 2018, their counsel wrongfully refused to provide the disclosures because of their pending motion to dismiss the claims against them. See doc. 78-3 at 2.[2] However, Zavala did not seek relief from the court until December 11, 2018-less than three weeks before the discovery cut-off. See doc. 48. And, when Zavala sought such relief, he failed to utilize this court's procedures for resolving discovery disputes. See Id. See also doc. 20 at 1, 17-19. The Prospect Mining Defendants and Bryant finally provided their initial disclosures the same day they filed their motion for summary judgment and more than one month after the court ruled on their motion to dismiss. See doc. 78-4. While significantly untimely, the delay had no impact on Zavala, who opposed these Defendants' motion for summary judgment without submitting a Rule 56(d) affidavit or declaration asserting a need for additional discovery. See docs 71; 72. As a result, the court finds that the Prospect Mining Defendants' and Bryant's failure to timely disclose witnesses and documents as required by Rule 26(a) was harmless, and Zavala's motions to strike, docs. 70 and 87, are due to be denied.

         2. The Defendants' Objections

         The Defendants object to certain evidence Zavala submitted in opposition to summary judgment, including an affidavit, declaration, and unsworn statement from a witness, arguing that the evidence contains inadmissible hearsay, is beyond the scope of the witness's personal knowledge, and is conclusory. Docs. 81 at 2-3; 82. To begin, because the court's role at summary judgment is to require the non-movant to show “that []he can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue of material fact exists, ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), there is a difference between considering evidence that does not strictly conform to the rules of evidence, at least as presented, but has some probative value and a conclusory statement that lacks any indicia of reliability at all. Next, declarations and affidavits opposing summary judgment “must be based on personal knowledge [and] set out facts that would be admissible in evidence . . . .” Fed.R.Civ.P. 56(c)(4). But, “a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (quotation omitted). In addition, the law is clear that “conclusory allegations” in a declaration or affidavit opposing summary judgment “‘have no probative value.'” Hamilton v. Sikorsky Aircraft Corporation, 760 Fed.Appx. 872, 877 (11th Cir. 2019) (quoting Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000)). With these principles in mind, consideration of the challenged evidence does not change the court's analysis, and the defendants' motions to strike, docs. 81 and 82, are due to be denied as moot.[3]

         II. STANDARD OF REVIEW

         Under Rule 56(a) of the Federal Rules of Civil Procedure, 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.” Fed.R.Civ.P. 56. “Rule 56[] 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 issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (citation and internal 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, 477 U.S. at 248.

         On summary judgment motions, 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 255. Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports the non-moving party's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (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) (per curiam) (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 the 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).

         III. RELEVANT FACTUAL BACKGROUND [4]

         A. Operation of the Maxine Pratt Mine

         Warrior developed and operated the Maxine Pratt Mine (the “Mine”) in Jefferson County, Alabama for underground coal mining. Doc. 63-6 at 2-3. Warrior entered into a contract with the Hispanic Employment Labor Pool, Inc. (“HELP”), pursuant to which HELP provided employees to work at the Mine. Docs. 60-2 at 2; 63-6 at 3-11. Under the terms of the contract, all these individuals “shall be considered to be solely the employees or subcontractors of HELP . . . .” Doc. 63-7 at 6. The contract also provides that if Warrior “is dissatisfied with the performance of any of HELP['s] employee(s) for any reason at any time, Warrior [] will have the option to replace any employee of HELP [] at any time.” Doc. 63-7 at 4. According to Bryant, Warrior's President, Warrior did not have authority to discharge employees and could only request that HELP not assign certain employees to work at the Mine, or refer employees back to HELP. Doc. 63-6 at 3. Bryant also contends that the employees HELP provided received their paychecks and benefits from HELP. Doc. 63-6 at 6.

         In 2015, Warrior decided to stop mining coal and to only process and sell coal from the Mine. Doc. 63-6 at 3. Accordingly, Warrior closed the coal mining operation in October 2015 and discharged the Mine's employees. Id. Around that time, Bryant approached Parton, the managing member or President of Alaco, and asked Parton to help him re-open the Mine. Doc. 60-2 at 1. About a month later, Alaco reopened and began operating the Mine. Doc. 63-6 at 4. Alaco and Warrior executed a formal, written agreement on January 2, 2016 for Alaco to take over the Mine's underground coal mining operations. Id. Through the end of March 2016, however, Warrior continued to handle the payroll and provide benefits for the employees who worked at the Mine, and Alaco in turn reimbursed Warrior. Doc. 60-2 at 2. Beginning in April 2016, Cordova provided payroll to Alaco's employees at the Mine. Docs. 63-6 at 5-6; 60-2 at 2-3. Additionally, to facilitate a labor contract between Alaco and Cordova, Cordova issued stock shares to the principals of Alaco. Doc. 63-9.

         After Alaco began operating the Mine, Warrior and Bryant no longer had responsibility for supervising any of the coal mining employees. Consequently, Bryant informed Jesse Hernandez, the President of HELP, that he would need to contact Alaco or Parton about issues relating to the contract and HELP employees who work at the Mine. Doc. 63-6 at 4-5. However, based on the record before the court, the contract between Warrior and HELP did not change after Alaco took over operations, and HELP continued to supply employees to work in the Mine pursuant to its contract with Warrior. See doc. 63-7. HELP invoiced Warrior for the employees it provided, and Alaco would reimburse Warrior. Doc. 39-11 at 4.

         In May 2016, Warrior merged into Prospect, and after the merger Prospect changed its name to Prospect Mining and Development Company, LLC. Doc. 63-6 at 6-7.

         B. Zavala's Relevant Work History and the Alleged Harassment

         Zavala, a Hispanic man, worked on the night shift in the Mine as an employee of HELP from April 2013 until October 2016. Docs. 60-1 at 1; 60-2 at 2. See also doc. 63-3. During that time, Zavala reported to Sexton, the night shift foreman. Sexton in turn reported to Laws, the Mine Superintendent, and Parton Jr. worked as the Mine's chief electrician. Docs. 60-2 at 2; 60-3 at 1-2; 60-4 at 1-2; 75-1 at 2. All three-Sexton, Laws, and Parton-were employed by Cordova during the relevant time. Docs. 60-3 at 2; 60-4 at 2.[5]

         According to Zavala, Sexton made sexual verbal advances and used sexually explicit language beginning in May 2016 before the alleged harassment escalated to inappropriate physical attacks. Doc. 75-1 at 3. One such alleged incident occurred in early June 2016 while Zavala was laying on the Mine's floor during a break. Allegedly, Sexton stood over Zavala, grabbed Zavala by the hips, and “forcefully started hunching on [Zavala] repeatedly rubbing his genitalia on top of [Zavala's] genitalia” with force. Id. at 4. During this assault, Sexton forcefully restricted Zavala's movement, causing Zavala to fight to free himself. Id. The next day, Zavala reported the incident and the prior verbal harassment to Laws, who said he would report it to Parton, Alaco's President. Id. Zavala contends that Laws did nothing in response, and that Sexton assaulted him again a few weeks later. Id. During this incident, Sexton climbed on Zavala's back while Zavala laid on the mine's floor to stretch during a break, held Zavala's hips, rubbed his genitalia forcefully against Zavala, and “used profane language.” Id.

         Because Zavala contends that “the Mine Employers were not taking any action to stop Sexton, ” he reported the assaults to Hernandez approximately a month after the second incident. Id. at 4-5. Hernandez in turn called Parton to discuss Zavala's complaint, and, according to Hernandez, Parton took the matter seriously. Doc. 63-4 at 2. Parton attests that Hernandez informed him of only one alleged assault and that after Hernandez's call, he immediately confronted Sexton, who denied assaulting Zavala. Doc. 60-2 at 4. See also doc. 60-3 at 2. Parton then asked Laws to speak to other miners on the night shift, and Parton understood from Laws that none of the other miners witnessed or knew about the alleged assault. Doc. 60-2 at 4. For his part, Laws attests that he spoke to more than three miners and that none of them witnessed the alleged assault or any other inappropriate conduct. Doc. 60-4 at 3. Subsequently, Parton cautioned Sexton “that there should not be any type of future conduct that someone may consider harassment.” Doc. 60-2 at 4. Parton then contacted Hernandez to report that the Mine addressed the matter and that things were under control. Doc. 63-4 at 2.

         Zavala has a different view of the defendants' response. According to Zavala, the defendants and HELP did nothing to respond to his complaints or to stop Sexton's conduct. Doc. 75-1 at 5. In particular, Zavala attests that the defendants did not ask him about the alleged assaults, a fact that Parton and Laws concede, or place Sexton on probation. Id. at 5. See docs. 60-2; 60-4.

         Another miner, Adolfo Garcia, who witnessed Sexton assault Zavala, maintains that Parton and Laws did not ask him about Sexton's behavior. Doc. 75-2 at 6-7.[6] Garcia attests that Sexton harassed other Hispanic employees, including Garcia and his brother, Jorge Garcia. Id. at 7. Presumably, Garcia would have reported this alleged conduct if Parton and/or Laws had interviewed him.

         According to the Defendants, on November 1, 2016, Zavala walked out of the Mine during his shift without informing Sexton in violation of company safety policy. Docs. 60-2 at 5; 60-4 at 3; 63-4 at 3. Zavala maintains that he left the Mine to conduct a required check of his dust pump, and that both Parton and Sexton knew he was leaving to conduct the check. See doc. 75-1 at 7-8. Zavala attests that when he told Sexton ...


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