United States District Court, N.D. Alabama, Southern Division
K. KALLON UNITED STATES DISTRICT JUDGE
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.
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.
MOTIONS TO STRIKE AND TO HAVE MATTERS DEEMED
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.
Zavala's Motion to Have Matters Deemed
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
The Parties' Motions to Strike
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).
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.
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. 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.
The Defendants' Objections
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
STANDARD OF REVIEW
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.
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).
RELEVANT FACTUAL BACKGROUND 
Operation of the Maxine Pratt Mine
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.
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.
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.
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.
Zavala's Relevant Work History and the Alleged
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
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
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.
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.
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. 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.
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 ...