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Omanovic v. Tyson Foods, Inc.

United States District Court, W.D. North Carolina, Statesville Division

July 8, 2014



DAVID S. CAYER, District Judge.

THIS MATTER is before the Court on "Defendants' Motion for Summary Judgment" (Doc. 34), as well as the parties' associated briefs, affidavits, and exhibits. See Docs. 35, 38, and 39.

The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. ยง 636(c), and this Motion is now ripe for the Court's determination.

Having carefully considered the parties' arguments, the record, and the applicable authorities, the Court grants Defendants' Motion for Summary Judgment, as discussed below.


Plaintiff is a Bosnian Muslim who immigrated to the United States in 1999. He worked part-time for Tyson's Wilkesboro, North Carolina laboratory in 2000 and voluntarily resigned in January 2001 to pursue other opportunities. He was re-hired in a full-time capacity on June 6, 2005 as a Chemist/Microbiologist. Plaintiff was an at-will, non-management employee throughout his tenure.

On June 6, 2005, Plaintiff signed an acknowledgement of receipt of Defendants' policy against harassment. Plaintiff was aware of Defendants' "Harassment and Discrimination" policy throughout his employment. It provides that the company "will maintain a strict policy prohibiting any kind of unlawful harassment, such as that involving... sex... This policy prohibits harassment in any form, including verbal, written, visual or physical harassment." Doc. 35-1 at 77. It defines harassment as "unwelcome conduct, whether explicit or implied, verbal or non-verbal, which... creates a hostile work environment, or diminishes the dignity of any person." Id . Plaintiff signed additional acknowledgements of this policy throughout his employment and received annual electronic and in-person training. He also reviewed the policy on the employee bulletin board at the laboratory.

Tyson also had a policy in effect during Plaintiff's employment entitled "Cameras, Recording Devices and Cellular Phones Policy 269." This policy provides that in all "non-production areas, " "personal cellular phones are permissible during non-scheduled work times." Id. at 87. Section 2.3 of the policy warns that "[w]hat is not permissible in these areas is the use of any recording device that has picture or video capability. Anyone found to have violated the picture or video provision of the policy will be subject to suspension and/or termination." Id . The policy prohibits employees from taking photographs on any company property, including exterior areas. The only exception to this policy is contained in section 2.4.1 for those who are "authorized Tyson representatives." Id.

Laboratory Manager Joel Laster granted Plaintiff a leave of absence for a trip to Europe. Plaintiff departed on July 4, 2011, and believes he reported back to work within a week of his August 26, 2011 return to the United States.

Susan Darnell was a non-management employee of Defendants at the laboratory when Plaintiff was rehired in June 2005. On August 26, 2011, before Plaintiff's return from Europe, Darnell complained to Laster about photographs Plaintiff had taken of her at the facility's exterior break area in June 2011. Darnell reported that Plaintiff took a picture of her chest that did not include her face. She also reported that Plaintiff held his camera phone under a picnic table and photographed her crotch.

On August 31, 2011, Darnell reported to Laster that Plaintiff tried to hug and kiss her multiple times. She stated that Plaintiff kissed her on the cheek over her objections, and held his hand behind her buttocks, telling her that he was going to "pat her on the bottom." Doc. 35-4 at 9. She stated that his actions "made me very uncomfortable" and that after the photographs she felt "not simply uncomfortable, but violated." Id.

Complex Human Resources Manager Brent West was assigned to investigate Darnell's allegations. On September 14, 2011, West and Laster interviewed Plaintiff. This was the first time West had ever met Plaintiff. Plaintiff provided a written statement confirming that he took photographs of co-workers at the picnic table during late May to June 2011. He wrote that he accidentally took a photograph that displayed his own legs. Plaintiff admitted that Darnell did not give him permission to take her photograph, was upset and angry with him for taking the photograph, and asked him what he was going to do with the photograph. Doc. 35-1 at 44-46. Plaintiff received a written suspension notice pending the outcome of the investigation. Id. at 57-58.

On September 15, 2011, West interviewed Darnell. Darnell made similar allegations to West as she had made to Laster.

On September 16, 2011, Paula Bumgarner told West and supervisor Kathleen Miller that Plaintiff "made me feel uncomfortable in the workplace." Doc. 34-6 at 1. She stated that while walking in the laboratory hallway with her hands full, Plaintiff leaned in and tried to kiss her. She told them that "Mr. Omanovic's attempt to kiss me in the workplace was not as a friend or a relative, but rather I took it as him trying to kiss me in a romantic way. I am five feet three inches tall and would estimate he is approximately five feet ten inches tall. He leaned in and was only about six inches from my lips. I said Whoa! That's not okay!' and backed away. I told him he made me feel uncomfortable. He seemed irritated with me after that." Id. at 2.

Laster and West interviewed additional employees including Wanda Collins, Kristyn Jackson, Sharon Goad, Beverly Prevette, and Kathy Dilliard. They provided varying reports about the photograph Plaintiff took under the picnic table, including that it showed a ...

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