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Whitfield v. Fluor Enterprises, Inc.

United States District Court, S.D. Georgia, Augusta Division

March 15, 2019




         Before the Court is Defendant's motion for summary judgment. (Doc. 33.) The motion requests judgment for Defendant on Plaintiff's sexual harassment and retaliation claims. For the reasons set forth below, Defendant's motion is GRANTED.

         I. BACKGROUND

         This employment discrimination case arises from Plaintiff Porsha Whitfield's employment with Defendant Fluor Enterprises, Inc. as a temporary craft worker at Plant Vogtle, where Defendant managed the nuclear expansion construction project. (Dep. of Porsha L. Whitfield ("Pl. Dep."), Doc. 34, at 54-55, Ex. 3; see also Decl. of Brian Reid ("Reid Decl."), Doc. 33-3, ¶ 2.) The essence of Plaintiff s pro se amended complaint is that she was subjected to sexual harassment and was terminated in retaliation for complaining about that harassment and for her religious beliefs. (Am. Compl., Doc. 4, at 4-5.)

         A. JSA Meetings on April 4th and 5th

         Every day, Plaintiff and her fellow craft workers attended a Job Safety Analysis ("JSA") meeting. (Pl. Dep., at 66.) The meetings were led by General Foremen, who at that time were Darrum "Bo" Lewis and Alonza Martin. (Id. at 41-43.) At the April 4, 2016, meeting Lewis gave a presentation on CPR, during which he stated his preference to have a female co-worker give him mouth-to-mouth resuscitation. (Reid Decl., Ex. 8 ("Lewis Statement").) Plaintiff contends Lewis stated, "if it was Porsha, I'll lay down there, I would want her to give me mouth-to-mouth a long time."[1](Pl. Dep., at 93-94.) Defendant took statements from the other employees at the meeting; of those fifteen statements three employees do not recall CPR being discussed at all, eight remember the CPR discussion but did not hear Plaintiff's name ever mentioned, and four remember Lewis specifically naming Plaintiff. (Reid Decl., Ex. 5, at 5 ("Investigation Report").) Of the four that corroborated Plaintiff's version of events, two stated Plaintiff's name was mentioned "matter-of-factly" without any sexual connotations, one said it was a joke, and another could not characterize the statement. (Id.)

         The next day, April 5th, the JSA meeting was again led by Lewis. (Pl. Dep., at 66.) During the meeting, Plaintiff was applying make-up to her face, which caused Lewis to ask that everyone pay attention to his presentation. (Id. at 67, Ex. 2.) Plaintiff contends she raised her hand; Lewis gave her permission to speak; and she told Lewis "I've been doing this for years, I don't even use a mirror." (Id. at 71.) Lewis' statement maintains Plaintiff said "what that got to do with my make up being put on" and was disrespectful to him. (Reid Decl., Ex. 8 ("Lewis Statement").) Four witnesses to the incident submitted statements confirming Plaintiff was disrespectful to Lewis during the meeting and that she threatened to take the problem to human resources. (Reid Decl., Ex. 10.) One witness, Pamela Johnson, specifically mentioned Plaintiff's outbursts were frequent and made "for a chilled environment amongst her co-workers." (Id.)

         B. April 6th Discipline Meeting

          A day later, Plaintiff met with Lewis, Alonza Martin, her supervisor Stephen Weddon, and union representative Joe Baker regarding the previous day's incident. (Pl. Dep., at 84-85.) Plaintiff received a "write-up" for insubordination towards Lewis at the April 5th JSA meeting. (Id. Ex. 7.) Plaintiff disagreed with the discipline and told Lewis "if you dig one ditch you better dig two."[2] (Id. at 95, Ex. 14; see also Reid Decl., ¶ 12.) Plaintiff also told Weddon that Lewis was only writing her up because she rejected sexual advances from him and Martin. (Pl. Dep., at 93.) Plaintiff's "ditch" comment was considered a threatening statement by Lewis and the others at the meeting. (Reid Decl., ¶¶ 15, 18.) Consequently, on April 7th, Plaintiff was placed on paid suspension. (Id. ¶ 15; Pl. Dep., at 126.)

         C. Sexual Harassment Investigation

         After the April 6th discipline meeting, Weddon informed Labor Relations Specialist Brian Reid about Plaintiff's sexual harassment allegations. (Reid Decl., ¶¶ 12-13.) Reid immediately began investigating the matter. (Id. ¶ 13.) His investigation looked into the incident leading to Plaintiff's insubordination write-up and her ditch comment but focused primarily on her sexual harassment allegations. (Id.) Reid interviewed or took written statements from twenty-two individuals, including Lewis, Martin, Weddon, and many of the craft workers. (Id. ¶ 16; Investigation Report, at 2.)

         Plaintiff s written statement included the following allegations: (1) Lewis' mouth-to-mouth comment on April 4th; (2) Lewis telling Martin and Plaintiff that he could see his penis again after losing weight; (3) Lewis asking Plaintiff out twice;[3](4) both Foremen deciding to move Plaintiff's work area in an attempt to keep her away from a male co-worker; (5) Martin commenting multiple times that Plaintiff looked like his former girlfriend because the two were "built up just alike;" and (6) Martin asking Plaintiff out. (Whitfield Statement.) During Reid's interview with Plaintiff, she added that Martin hugged her and Martin prompted Lewis' mouth-to-mouth comment by asking if Lewis would like any of the "pretty ladies" to give him CPR. (Investigation Report, at 2.)

         Lewis admitted to making the mouth-to-mouth comment but denied naming Plaintiff specifically. (Lewis Statement.)

         Similarly, he admitted to making the weight loss comment, but did not direct it at Plaintiff. (Id.) For his part, Martin denied ever hugging Plaintiff, having an inappropriate conversation with her, or being present at the April 4th JSA meeting when CPR was discussed. (Reid Decl., Ex. 8 ("Martin Statement").) Martin also denied telling Plaintiff she looked like his former girlfriend. (Investigation Report, at 5.) Instead, he told Plaintiff that she looks like his friend's wife, and he maintained it was an innocent comment. (Id.) Finally, both Lewis and Martin informed Reid that the decision to move Plaintiff to a different work station was made because Plaintiff frequently left her assigned area when left unsupervised. (Id.)

         Reid interviewed or received a statement from at least eighteen other employees regarding the events of April 4th and 5th. (Id. at 2.) Two witnesses gave an account of the April 5th incident where Plaintiff was insubordinate, fourteen witnesses addressed the April 4th incident where Lewis made the mouth-to-mouth comment, and two witnesses spoke about both incidents. (See id.) As discussed previously, the witness accounts differed slightly, but at least four corroborated Plaintiff's version of events for April 4th. (Id. at 3-4.) However, each of the fourteen employees who discussed the April 4th incident stated they never witnessed any inappropriate or flirtatious behavior by Lewis and Martin. (See id.) After conducting a two-week investigation, Reid was unable to substantiate Plaintiff's allegations of sexual harassment. (Id. at 6.)

         D. Plaintiff's Termination

         Beyond the sexual harassment allegations, Reid investigated Plaintiff's ditch comment at the April 6th disciplinary meeting. Reid took statements from Plaintiff, Weddon, Lewis, and Martin, each of whom confirmed the ditch comment was made. (Investigation Report, at 2; Pl. Dep., at 95.) Lewis perceived the comment as a threat. (Reid Decl., ¶ 18.) While Plaintiff admitted to making the statement, she denied that it was a threat. (Pl. Dep., 136-41.) Rather, she claimed it was a "a southern term" that comes from the Bible[4] and simply means "be careful how you treat people." (Id. at 140.) Reid concluded, however, that it "was reasonable to assume that someone could take the comment as a threat particularly in the context that Ms. Whitfield made the comment." (Reid Decl., ¶ 18.)

         Dan Cozzolino, Defendant's Regional Facilities Manager, reviewed Reid's investigation and proposed Plaintiff be terminated based on the threatening ditch comment. (Id. ¶ 19.) Cozzolino specifically recalled another employee, Chianta Young, made the same comment in a threatening manner and was terminated. (Id. ¶¶ 19, 22.) Reid concurred in the decision and prepared a report for Defendant's Executive Review Board ("ERB"). (Id. Ex. 13 ("ERB Report").) The report specifically cites Section 11(b) of the Labor Agreement governing Plaintiff's employment as the policy supporting termination. (See ERB Report, at 3; Reid Decl., ¶ 6, Ex. 3.) Section 11(b) makes it a terminable offense to threaten another employee. (Reid Decl., Ex. 3.) Notably, the report also disclosed Plaintiff's sexual harassment allegations and outcome of Reid's investigation. (ERB Report, at 2.) The ERB reviewed and approved the termination decision and found that no adverse action was being taken against Plaintiff because she engaged in protected activity. (Reid Decl., ¶ 20.) On either April 25th or 27th, Reid informed Plaintiff that her employment was terminated. (Id.; Pl. Dep., at 125-26.)

         E. ...

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