United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM OF DECISION
MAX O. COGBURN Jr., District Judge.
THIS MATTER is before the court on defendant's Motion for Summary Judgment. Having considered defendant's motion, plaintiff's response, defendant's reply, and plaintiff's submission of additional authority, and heard oral arguments, the court enters the following Order granting summary judgment and dismissing this action.
FINDINGS and CONCLUSIONS
A. Plaintiff's Claim
Plaintiff, an hourly employee of defendant Municipal Emergency Service, Inc. (hereinafter "MES"), contends that she was subjected to sexual harassment in the workplace by defendant Eric Johnson (hereinafter "Johnson"). She contends that Johnson was a supervisor and MES contends he was plaintiff's coworker. Plaintiff asserts claims against MES under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), including claims for sexual harassment, constructive discharge, and retaliation. Plaintiff has also asserted supplemental state-law claims for intentional infliction of emotional distress and negligent retention/supervision.
B. Plaintiff's Employment
Plaintiff was employed by MES in January 2010 and reported alleged harassment by Johnson to management on December 10, 2010. This was plaintiff's first and only complaint of harassment. In 2010, plaintiff was hired as a seamstress at MES's Charlotte facility at which firefighter clothing and equipment is cleaned and repaired. It is undisputed that Johnson was the Company's "technical expert in the cleaning and care of turnout gear." Hubregsen Dep. at 63. It is equally undisputed that Johnson oversaw the work of plaintiff, among others, as they executed repairs. While plaintiff contends that Johnson was a supervisor, it is undisputed that Johnson did not have authority to make employment decisions involving employee hiring, termination, promotion, transfer, demotion, reassignment to a different job classification, pay increases (or pay decreases), benefits changes, or written discipline. The evidence which has been presented shows that Johnson never made the decision to terminate any employee, that he had no authority to issue written disciplinary warnings to others, and he never issued a write-up to any employee. Further, the record is clear that he never hired, transferred, demoted, or reassigned any employee during his employment at MES. Hubregsen Decl. ¶ 8; Johnson Decl. ¶ 5.
It is equally undisputed that Johnson undertook certain administrative duties at the facility, there were five or six employees at that workplace, and Johnson was called "manager" by his co-workers as well as upper management. For example, it is undisputed that when plaintiff was hired in January 2010, it was Johnson who sent plaintiff an e-mail with her new hire paperwork. Pl. Dep. 27-28, Ex. 2.
C. Plaintiff's Claim of Harassment
As to the alleged underlying harassing conduct, there is a factual dispute as to what actually occurred. There is not, however, a dispute as to the timeline of the alleged harassment, plaintiff's report to management, and the actions management took to investigate the claim. According to plaintiff, the last day she was allegedly harassed by Johnson was December 7, 2010. Pl. Dep. 171-177, 270-272. On December 10, 2010, she reported the alleged harassment to Jody Brown (hereinafter "Brown"). Brown is the Vice President, Southeastern Region, of MES, whose office is located in Charlotte in a building separate from the cleaning facility. Hubregsen Decl. ¶ 2. Brown advised plaintiff that MES would begin an immediate investigation into her complaints and sent plaintiff home with pay. Hubregsen Decl. ¶ 12; Brown Dep. 97-98. It is undisputed that neither Brown nor Thomas Hubregsen (hereinafter "Hubregsen"), the President of MES, knew of the alleged misconduct before plaintiff brought her complaint to Brown.
D. MES's Investigation
Brown immediately forwarded plaintiff's complaint to Hubregsen in accordance with the Integrity Policy. In turn, Hubregsen decided to take a direct role in the investigation of the allegation of harassment based on the seriousness of the allegation. Hubregsen Decl. ¶ 11. He took the following steps in initiating the investigation:
- physical separation of plaintiff and Johnson to allow him time to conduct an investigation;
- placement of plaintiff on an approved leave of absence with pay until the investigation was complete;
- directed other MES employees to preserve evidence, including emails;
- contacted counsel to advise as to appropriate method to conduct the investigation;
- conduct in-person interviews with plaintiff, Johnson, and their co-workers;
- sent Johnson an email notifying him of the complaint, instructing him not to discuss the matter with others, and advising him that such discussions could lead to disciplinary actions;
- asked questions during the employee interviews based on written guidelines from counsel; and
- wrote a preamble to be read to each employee before the interview concerning confidentiality and encouraged the employees to be forthright in their answers by advising them that retaliation for participating in the investigation or providing information is against the law.
On Thursday, December 16, 2010, Hubregsen travelled to Charlotte to conduct the interviews with Brown. The six interviews were conducted on that day, which included an interview of plaintiff. After plaintiff explained her allegations, she told Hubregsen and Brown that she wanted Brown fired along with another co-worker and for third employee to be "educated." The co-workers were next interviewed and each worker was asked whether they had seen any verbal or physical misconduct by Johnson towards plaintiff. In turn, each employee answered in the negative. Finally, Johnson was interviewed at which Hubregsen and Brown outlined each allegation made by plaintiff. During his deposition, Hubregsen was asked to recount his line of questioning during the Johnson interview, and Hubregsen testified as follows:
I asked him had he shown pornography on his computer. I asked him did he have any pornography on his computer. I asked him did he show nude pictures of himself on the silver camera to anybody. I asked him had he elicited sexual favors from Mrs. Rhodes. I asked him had he reached and taken candy from her candy dish and pushed himself onto her back on a number of occasions. I asked him about his interaction with Mrs. Rhodes' daughter.
I asked him about Jason Tilley's visits to the cleaning and care center and Mr. Tilley engaging in sexual activity in the bathrooms or anywhere else in the facility. I asked him if Ms. Murray participated in any sexual activity in the office. I asked him if there was any discussion of a sexual nature in the cleaning and care center.
I asked him about his relationship with Mrs. Rhodes. I asked him about his relationship with Jason Carpenter. I asked him about his relationship with Mrs. Pierson. I asked him about his relationship with Mrs. Murray. I asked him about the ...