By Tulay Turan, J.D.
In addition to his sexual harassment claim, the employee’s retaliation claim also survived: He was terminated two days after reporting racial discrimination that another employee had reported to him in his HR capacity, a retaliation protection issue that is currently pending before the en banc Eleventh Circuit.
A former human resources employee at a chicken processing facility who alleged his manager intentionally touched him in offensive ways and terminated him after he reported another employee’s discrimination claim can proceed with his sexual harassment, retaliation and gender discrimination claims against his employer and his assault and battery claims against the manager, a federal district court in Alabama ruled. The court granted summary judgment for the defendants on his other state law and race discrimination claims, however (Fuller v. Koch Foods, Inc., July 12, 2019, Brasher, A.).
Koch Foods is a chicken processor in Alabama that owns Ala-Koch and several other processing facilities. In February 2015, the employee started working as a temporary employee in the human resources department at the Ala-Koch debone plant. A month later, the HR manager hired him as a full-time Ala-Koch employee to work under her supervision.
Allegations of sexual harassment. During his employment at Ala-Koch, the employee alleged the HR manager sexually harassed him by kissing him, touching his chest, placing her breasts on him, requesting sexual favors, suggesting that he leave his family for her, asking him to sit in her lap, calling him at home and making sexual comments to him. He alleged he was afraid to report the sexual harassment to the HR supervisor because he heard the supervisor and manager were in a sexual relationship.
Termination after reporting discrimination. In May 2015, the employee sent an email to the supervisor and manager reporting a claim of racial discrimination that another employee had reported to him regarding disproportionate discipline received by African-American employees. Two days later, the manager terminated the employee on the basis that he had abandoned his employment while he was attending his son’s elementary school graduation during his lunch break.
The employee filed this complaint on February 16, 2017, alleging state law claims against the HR manager and sexual harassment, retaliation and discrimination claims against both Koch Foods and Ala-Koch. The defendants filed motions seeking summary judgment.
Invasion of privacy and outrage. The court first granted the HR manager’s motion for summary judgment on the employee’s invasion of privacy and outrage claims. The alleged intrusion into the employee’s private concerns fell short of that required to constitute the tort of invasion of privacy. His claim of the tort of outrage similarly fell short because sexual harassment is not a tort under Alabama law.
Assault and battery. The court found the employee could proceed with his claim against the HR manager for assault and battery, however. The manager did not, and could not, argue the employee failed to adduce substantial evidence that she intentionally touched his person. The employee alleged the manager grabbed his face, touched his chest, rubbed her breasts against him, and attempted to kiss him. The evidence he presented against the manager was similar to that in Alabama caselaw where courts concluded such assertions constituted substantial evidence the defendant committed a battery. Thus, the court denied the manager’s motion for summary judgment on this claim.
Claims against Koch Foods. Next, the court granted Koch Foods’ motion for summary judgment on all claims against it because the employee offered no evidence to support any of those claims, other than the general and undisputed evidence that it is the parent company of Ala-Koch. The employee also failed to respond to any of Koch Foods’ arguments in its motion for summary judgment.
Race discrimination against Ala-Koch. Turning to the claims against Ala-Koch, the court granted its motion for summary judgment on the employee’s race discrimination claim because he failed to respond in his response to the motion for summary judgment that he was subject to any discipline greater than any other employee based on race. There was no evidence before the court to support the employee’s allegation he was terminated or received any other disparate treatment on the basis of his race.
Sexual harassment claims. The court next deniedAla-Koch’s motion for summary judgment on the employee’s sexual harassment claims. The employee did not argue the harassment itself was so severe and pervasive that it constituted a change in employment conditions. Rather, he argued Ala-Koch permitted the HR manager to take employment action against him—i.e., termination—because he declined her advances. The Eleventh Circuit has approved this theory of liability in a sexual harassment case like this one.
The court also found there was a genuine issue of fact as to whether the supervisor or the manager made the decision to terminate the employee. The manager was the employee’s immediate supervisor, evidence suggested she and the HR supervisor were having an affair, an email showed she and the supervisor communicated about the termination, and Ala-Koch conceded evidence showed the manager relayed to the supervisor that the employee had left work without permission, which is the act that ostensibly led to his termination. This is enough evidence for a jury to disbelieve the supervisor’s assertion that he alone made the decision to terminate the employee.
Retaliation protection issue pending. The court also denied Ala-Koch’s motion for summary judgment on the employee’s retaliation claim. The employee alleged Ala-Koch, through the actions of the manager, retaliated against him for reporting a claim of racial discrimination that another employee had reported to him regarding disproportionate discipline received by African-American employees. Although Ala-Koch argued this allegation could not serve as the basis for a retaliation claim, the court noted the question whether HR employees are covered by retaliation protection when they raise claims on behalf of other employees and whether they can still be fired for the manner in which they raise those claims is currently pending before the en banc Eleventh Circuit in Gogel v. Kia Motors Mfg. of Georgia, Inc.
“Gogel suggests at least the possibility that a viable claim of retaliation exists when substantial evidence supports that the manner in which an HR employee plaintiff raised race claims on behalf of other employees could have served as the basis for an adverse employment action,” the court wrote. Thus, this issue may be addressed again, if appropriate, after the Eleventh Circuit decides Gogel.
The court also found that given the timing and circumstances of the employee’s dismissal two days after he made the complaint, there was substantial evidence that the reasons claimed by Ala-Koch for his dismissal were pretextual.
Issues of fact regarding gender discrimination. Lastly, the court denied Ala-Koch’s motion for summary judgment on the employee’s gender discrimination claim because there were genuine issues of fact regarding his replacement and the number of HR employees who left their jobs without permission without their employment being terminated. There was also a material dispute as to whether he had permission to leave work; that dispute affected the comparator analysis. Construing the evidence in the light most favorable to the employee, he at least attempted to obtain permission to leave, was refused re-entry upon return, and called both his manager and the supervisor without being given any instruction as to the status of his employment.
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