United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE.
matter is presently before the Court on a motion for summary
judgment filed by Defendant Carl Eric Johnson, Inc.
(“CEJ”). [Doc. 47]. For the reasons set forth
herein, the undersigned RECOMMENDS that the
motion be GRANTED IN PART and DENIED
Summary Judgment Standard
judgment is proper when no genuine issue as to any material
fact is present, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a). The moving party
carries the initial burden of “informing the court of
the basis for its motion and of identifying those materials
that demonstrate the absence of a genuine issue of material
fact.” Rice-Lamar v. City of Fort Lauderdale,
232 F.3d 836, 840 (11th Cir. 2000) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
A fact is “material” if it “might affect
the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The moving party may also meet its burden by pointing
out that there is an absence of evidence to support an
element of the case on which the nonmoving party bears the
burden of proof. Celotex, 477 U.S. at 325.
“Only when that burden has been met does the burden
shift to the non-moving party to demonstrate that there is
indeed a material issue of fact that precludes summary
judgment.” Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991).
nonmoving party is then required “to go beyond the
pleadings” and present competent evidence in the form
of affidavits, depositions, admissions, and the like,
designating “specific facts showing that there is a
genuine issue for trial.” Celotex, 477 U.S. at
324. The Court must view the evidence and factual inferences
in the light most favorable to the nonmoving party. See
United States v. Four Parcels of Real Prop., 941 F.2d
1428, 1437 (11th Cir. 1991) (en banc). And, to the
extent that material facts are genuinely in dispute, the
Court must resolve the disputes in the nonmovant's favor.
See Vaughan v. Cox, 343 F.3d 1323, 1326 n.1
(11th Cir. 2003).
“the mere existence of a scintilla of evidence”
supporting the nonmovant's case is insufficient to defeat
a motion for summary judgment. Anderson, 477 U.S. at
252. Additionally, “facts must be viewed in the light
most favorable to the nonmoving party only if there is a
‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
“When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.” Id. If the record does
not blatantly contradict the nonmovant's version of
events, the court must determine “whether a fair-minded
jury could return a verdict for the plaintiff on the evidence
presented.” See Anderson, 477 U.S. at 252;
see also EPL Inc. v. USA Fed. Credit Union, 173 F.3d
1356, 1362 (11th Cir. 1999); Duke v.
Cleland, 884 F.Supp. 511, 514 (N.D.Ga. 1995). “If
the record presents disputed issues of material fact, the
Court may not decide them; rather, it must deny the motion
and proceed to trial.” FindWhat Inv. Grp. v.
FindWhat.com, 658 F.3d 1282, 1307 (11th Cir.
2011) (citing Tullius v. Albright, 240 F.3d 1317,
1320 (11th Cir. 2001)).
CEJ is in the business of engineering and selling
fluid-handling systems. (D ¶ 1). Plaintiff Edward Cotton
began working at CEJ through a staffing company on April 26,
2013, and was hired by CEJ as a full-time employee on August
5, 2013. (P ¶¶ 19, 20; D ¶ 2). Plaintiff
worked as a welder/fabricator during his time at CEJ. (P
¶ 21; D ¶ 3).
was one of three welder/fabricators during his time at CEJ.
(D ¶ 7). Crystal Padilla was CEJ's Vice President
and Chief Financial Officer and was also the on-site manager.
(P ¶ 1; D ¶ 38). Padilla was the only senior
manager on site, and everyone who worked in the building
technically reported to her. (P ¶¶ 4, 5). One of
the other welder/fabricators, Harold Fisher, was
Plaintiff's supervisor. (D ¶ 11). Fisher was the
shop manager and reported directly to Padilla. (P ¶ 6).
job responsibilities included building equipment in
accordance with drawings submitted by CEJ's engineering
staff. (D ¶ 4). Tasks incidental to his position
included gathering materials from stock, verifying materials
against bills of materials, cutting raw materials to size,
and welding, assembling, and preparing projects for shipment.
(D ¶ 5). Welders/fabricators were also required to
assist in CEJ's pump shop at times. (D ¶ 93).
to Plaintiff's hiring, Fisher made a Styrofoam penis for
the purposes of playing a joke on an old supervisor. (P
¶ 26). The Styrofoam penis was twelve inches long. (P
¶ 29). Following the joke, Fisher placed it in a box on
a shelf in the shop. (P ¶ 27).
after Plaintiff became a full-time employee, there was an
incident where Fisher danced suggestively and made humping
motions at the table where Plaintiff was working. (P ¶
24; Deposition of Edward Cotton (“Pl. Dep.”)
[Doc. 49] at 44-46).Plaintiff “didn't think anything
of it” and, along with his co-workers, “laughed
it off.” (P ¶ 25; Pl. Dep. at 44).
mid-September 2013, Fisher found the Styrofoam penis while he
was going through boxes. (P ¶ 28). Fisher thought it
would be funny if he placed it in Plaintiff's welding
helmet, and he did so. (P ¶ 30; D ¶ 45). When
Plaintiff found the Styrofoam penis in his welding hood, he
did not think it was funny and was upset. (P ¶ 31; D
¶¶ 45, 46; Pl. Dep. at 47-49). Seeing that
Plaintiff was upset, Fisher told him that there was nothing
wrong with having gay friends and that “This is how we
play. . . . This is how we joke in the shop.” (P ¶
32; Pl. Dep. at 48). Plaintiff responded that he “did
not joke like that” and did not care what Fisher did or
who Fisher's friends were but that Plaintiff did not want
their sexual lifestyle imposed on him. (P ¶ 33).
couple of days later, the Styrofoam penis reappeared, taped
to the motorcycle of James Hestir, another CEJ employee. (P
¶¶ 34, 35; D ¶ 48; Pl. Dep. at 50-54). When
Hestir asked who had placed it on his motorcycle, Fisher
pointed at Plaintiff. (P ¶ 37). Plaintiff's
co-workers almost goaded Plaintiff into taping the Styrofoam
penis to the back of another co-worker's truck, but the
co-worker saw him, and Plaintiff did not follow through. (D
¶ 47); [Doc. 3 (Compl.) at 12]. At that point, the
Styrofoam penis was sitting on Fisher's work desk. (P
¶ 38). Plaintiff took it to Fisher's office and put
it in a backpack he found hanging there. (P ¶ 38).
eventually “felt things had gotten out of hand”
and “cut [the penis] up, destroyed it and threw it
away.” (P ¶ 42). No one reported the pranks
involving the Styrofoam penis. (P ¶ 43).
welder/fabricator worked at his own individual work station.
(D ¶ 8). Plaintiff had initially worked at a station
located approximately six to ten feet from the other
welder/fabricators. (D ¶¶ 9, 63). In or around
November 2013, Fisher moved Plaintiff to a different work
station approximately fifteen to twenty feet from the other
two welder/fabricators. (P ¶ 49; D ¶¶ 10, 63).
that time, Fisher began to tell Plaintiff stories about his
gay friends and how they would ask Fisher to join in
threesomes with them. (P ¶¶ 52, 68). Plaintiff
would object to the conversation and would tell Fisher that
he was not gay or bisexual and was not interested in that
kind of talk. (P ¶ 53). Fisher would respond to
Plaintiff's protest by stating, “Well, don't
knock it until you try it.” (P ¶ 54). Fisher would
also regularly suggest that Plaintiff would like gay oral or
anal sex. (P ¶ 55). He would go over to Plaintiff's
table; say, “Be careful what you ask for”; and
move his body in a sexually suggestive manner. (P ¶ 56).
A couple of times per week, Fisher would come up from behind
Plaintiff, perform a humping motion, and make comments such
as, “I bet you would like it like that.” (P
¶ 57). Fisher would call Plaintiff “baby”;
say, “oh, baby”; and wolf whistle at him on a
daily basis. (P ¶ 69).
December 2013, Fisher commented to Plaintiff that Plaintiff
would not know the difference between a man sucking his penis
versus a woman sucking his penis. (P ¶ 61). In response
to this, and on numerous other occasions, Plaintiff responded
by telling Fisher not to “come at me like that”
because Plaintiff was not gay or bisexual. (P ¶ 62). He
would repeatedly tell Fisher that Fisher's having gay or
bisexual friends did not bother him but that “what does
offend me is when you try to push it off on me.” (P
January 2014, upon seeing Plaintiff welding with his tongue
out, Fisher said, “I bet you would like it in your
mouth.” (P ¶ 58). In response, Plaintiff said,
“Man, we don't play like that, ” and
reiterated that he was not gay or bisexual and that
Fisher's comments were inappropriate. (P ¶¶ 59,
60; Pl. Dep. at 71). On another occasion, Fisher told
Plaintiff that his gay friends were going out of town and
asked Plaintiff to come over to his friends' house, where
he said they could be alone. (P ¶ 66).
another time in January 2014, Fisher came up behind Plaintiff
while he was welding and grabbed him in approximately the hip
area in a sexually suggestive manner, touching very close to
Plaintiff's genitals. (P ¶ 63; D ¶¶ 61,
62; Pl. Dep. at 74-75, 87). Plaintiff turned around and said,
“I do not play like that. Don't touch me.” (P
¶ 64). Fisher walked away, but later, he taunted
Plaintiff by stating in front of others that Plaintiff
“likes to be touched.” (P ¶ 65).
February 2014, Plaintiff perceived that Fisher had
dramatically increased his workload. (P ¶¶ 73-75;
Pl. Dep. at 84). Fisher also denied Plaintiff's repeated
requests for assistance on the grounds that Plaintiff
“liked to work alone” and was told by other
workers that Fisher had told them not to help
Plaintiff. (P ¶¶ 76, 77).
was also asked to perform menial and more difficult tasks,
some of which put his safety at risk. (P ¶¶ 78-79).
Once, Plaintiff was told to take apart stickers, clean them,
and put them back on. (P ¶ 83). Fisher told him,
“If they're not on, perfectly spaced apart, then
we're going to have a problem.” (P ¶ 83). In
another instance, he was directed to clean pumps without
being given access to industrial gloves workers usually wear
to perform the task; instead, he was given hospital gloves
and wore four or five pair at a time, since the solution used
to complete the task dissolves hospital gloves. (P
¶¶ 79-81). When Plaintiff asked Fisher for the
proper gloves, he responded by saying, “We don't
have no more of them. Just get over there and do the damn
job-do the job.” (P ¶ 82).
19, 2014, Plaintiff requested a meeting with Padilla because
he was being given so many projects without adequate help. (P
¶¶ 87, 90; D ¶ 38). At that point, Fisher
stopped his comments and began avoiding Plaintiff. (P ¶
met with Padilla on May 20, 2014. (D ¶ 39). Fisher also
attended the meeting but only observed and did not say a
word. (P ¶¶ 91, 92). Padilla often told Plaintiff
what a good job he was doing, and during this meeting,
although she mentioned a mistake Plaintiff had made on a
project completed almost a year earlier, she also told him
that his performance was fantastic and that he could have a
job with Defendant for as long as he liked. (P ¶¶
94, 95). Plaintiff requested a raise, explaining that he was
being assigned extra work to complete by himself, and Padilla
said she would look into it. (P ¶¶ 93, 97; D
¶¶ 39, 69; Pl. Dep. at 98). Padilla also asked
Plaintiff why he thought his workload had increased, to which
Plaintiff responded that he thought that Fisher was assigning
him extra work because he had complained to Fisher about
Fisher's sexual comments and conduct. (P ¶¶ 97,
98; Pl. Dep. at 98-100). Plaintiff strongly expressed his
concerns; provided ...