United States District Court, W.D. Virginia, Roanoke Division
ROBERT L. MARMON, Plaintiff,
R. A. LILLY & SONS, INC., Defendant.
GLEN E. CONRAD, Chief District Judge.
Plaintiff Robert L. Marmon filed this action against his former employer, Defendant R.A. Lilly & Sons, Inc. ("Lilly & Sons"), claiming that he was sexually harassed in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Marmon also asserts a claim for constructive discharge. The case is presently before the court on Lilly & Sons' motion for summary judgment. For the following reasons, the court will grant that motion.
Factual and Procedural History
The following facts from the summary judgment record are either undisputed, or, where disputed, are presented in the light most favorable to Marmon. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (all evidence must be construed in the light most favorable to the party opposing summary judgment).
Lilly & Sons, d/b/a Five Star Fab & Fixture ("Five Star"), is a family-owned company that manufactures countertop products and commercial cabinetry for medical entities, universities, home centers, cabinet shops, and building supply companies. Deposition of Roger Lilly ("Roger Dep.") at 5-7, Mot. Summ. J. Ex. 4, Docket No. 44. The president and sole shareholder of Lilly & Sons is Roger Lilly ("Roger"). Roger's three sons - Jeremy, Justin, and Jared - also work at Five Star. Id . Jeremy is the IT Manager, and Justin is the Human Resources Manager. Id . Jared worked in several positions at Five Star during the relevant time period, including as a cabinet fabricator, a solid surface fabricator, a solid surface installer, and a supervisor in the solid surfaces department. Deposition of Jared Lilly ("Jared Dep.") at 14, 20-22, 30-31, Mot. Summ. J. Ex. 10. Other Lilly family members also work at Five Star. Deposition of Bryan Wilkinson ("Wilkinson Dep.") at 18, Pl.'s Br. in Opp. Ex. 3, Docket No. 51. According to Marmon, "if one of [Roger's] sons told [an employee] to do something, it was the equivalent of Roger telling [the employee] to do it." Marmon Decl. ¶ 5, Pl.'s Br. in Opp. Ex. 4.
Marmon began working for Five Star in 2002. Deposition of Robert Marmon ("Marmon Dep") at 27. After he was hired, Marmon participated in a brief orientation. Id. at 30-31. He also received an employee handbook outlining Five Star's policies and procedures, including its equal opportunity employment policy and anti-harassment policy. Id. at 38-39, Mot. Summ. J. Ex. 1. Marmon knew to whom he could report complaints under the harassment policy and understood that complaints should be reported immediately. Id. at 39-40. Although Five Star updated its employee handbook from time to time, Marmon testified that he did not receive those updates. Id. at 37.
Soon after Marmon was hired, he went on an installation job with Jared. Id. at 119-20. At that time, Marmon told Jared that he had served in the Navy, to which Jared replied, "Well, you know how those Navy boys are." Id. at 120. Marmon also told Jared that his brother was homosexual, and Jared said that "it runs in the family." Id . Within "a week or two" of this interaction, Jared began to frequently refer to Marmon as "bob on my knob, " a phrase suggesting oral sex. Id. at 48-49; Jared Dep. at 35-36. Jared occasionally made gestures imitating oral sex or grabbed his testicles when he said this phrase. Marmon Dep. at 99, 105. According to Marmon, Jared started making these comments because "he thought that it was funny... that [Marmon] had a gay brother." Id. at 120. Jared called Marmon this name "all the time, every day, every other day for years." Id. at 99. Approximately a dozen times, Jared also sang a song to Marmon that included the lyrics "bob on my knob." Id. at 104; Jared Dep. at 33-35, 47-48, 57. Jared also posted the lyrics to this song on Marmon's machine at work. Marmon Dep. 107-108; Jared Dep. 35, 47-48, 58. Over time, other Five Star employees, including Shannon Charles and Jay Sheldon, began to call Marmon this name occasionally as well. Id. at 97, 131-32.
Marmon generally ignored Jared and the other employees. See Marmon Dep. at 122 ("I'm a big enough boy, I can take that kind of stuff... That's how my ma raised me, you know, just ignore them. They'll get tired of saying it."). Marmon also attempted to avoid Jared by using different restrooms so as to not cross paths with him. Id. at 105. One time in 2009 or 2010, Marmon told Jared that he needed to "watch his mouth." Id. at 98. Marmon likewise told Shannon Charles on one occasion to "watch [his] mouth" because Marmon was "tired of hearing that." Id. at 133. Marmon did not tell Jared or Charles that he was offended by this behavior or ask either man to stop. Id. at 109. Marmon left the note Jared posted hanging on his machine for four to six months, which Marmon admits could be interpreted as a sign that he was not offended by the song's lyrics. Id. at 109-10. Jared testified that he believed that he had a "teasing" relationship with Marmon. Jared Dep. at 34, 43.
In 2003 or 2004, Marmon was discussing a job with Jared when Jared "backhanded [him] in [his] privates, in [his] penis." Marmon Dep. at 121-22. Jared testified that he occasionally participated in this kind of "horseplay game, " known as "bag tag, " with his friends and coworkers. Jared Dep. at 49-50; see also R. Garcia Dep. at 13-16, Mot. Summ. J. Ex. 9; Huffman Dep. at 14-17, Mot. Summ. J. Ex. 7; Mitchell Dep. at 8-10, Mot. Summ. J. Ex. 5 (confirming that some Five Star employees, including Jared, played this "game" from time to time). Marmon immediately tried "to put a boot in [Jared's] butt as he ran away" and told Jared that if he did that again, "they will carry [him] out of here in an ambulance, " because Marmon would not "put up with that stuff." Marmon Dep. at 121-22; Jared Dep. at 49-50. Jared never attempted to touch Marmon's groin again. Marmon Dep. 121-23.
On November 14, 2010, Marmon went to work on a Sunday to polish a display case. Id. at 91. He approached Roger, Justin, and Jared, who were standing together on the shop floor, to tell them he had completed the task. Id. at 91-92. Roger and Justin thanked him for coming into work on the weekend. Id. at 92. As Marmon walked away, however, Jared "broke into his song" in front of his father and brother. Id . Marmon "looked back at them and... [Roger and Justin] gave no indication that anything was happening." Id . Marmon "shook [his] head and walked off." Id . According to Marmon, Roger and Justin clearly heard Jared singing the offensive song that day and did nothing to stop him. Id. at 92-93.
In late 2009 or early 2010, Five Star implemented a new time- and cost-saving method for cutting countertops. Id. at 55-59. Marmon struggled with this new procedure. Id. at 61. On November 3, 2010, after a series of verbal warnings, Brian Wilkinson, Five Star's Operations Manager, issued Marmon a written reprimand for failing to follow the new procedure. Id. at 61-69. On November 19, 2010, Wilkinson issued Marmon a second written reprimand after he fabricated the materials for a project in the wrong color laminate. Id. at 74-77. During this disciplinary meeting, Marmon told Wilkinson about Jared's song for the first time. Id. at 111-13; Wilkinson Dep. at 21, 25-26. Wilkinson responded by describing Marmon's complaints as "just venting." Marmon Dep. at 112. Marmon replied, "Yeah, that's pretty much how it goes here." Id . Marmon also told Wilkinson, "Just don't worry about it" because "we don't want to upset the Lillys." Id . Marmon testified that he "didn't expect [Wilkinson] to do nothing" about the harassment. Id. at 114. Wilkinson agreed not to report Marmon's complaint. Wilkinson Dep. at 21 ("[Marmon] had asked me to keep [his complaints] in confidence from the beginning..."). According to Wilkinson, he "did not know that... [Marmon] was talking about sexual harassment insofar as... a formal complaint." Id. at 25. Wilkinson had never handled a sexual harassment complaint before. Wilkinson Decl. ¶ 3, Mot. Summ. J. Ex. 8.
On December 20, 2010, Roger learned that Marmon told other Five Star employees that he intended to "take [Lilly & Sons] to court and  settle [his complaints] that way." Marmon Dep. at 115; Roger Dep. at 8 ("Initially, [Marmon] had not lodged a complaint, but I heard that he was unhappy... from several employees on the production floor."). That same day, Roger directed Wilkinson and Ralph Mitchell, a Five Star project manager, to investigate Marmon's complaints. Roger Dep. at 9. Roger specifically did not ask his son Justin, Five Star's Human Resources Manager, to complete the investigation, because he "felt that since [Marmon's complaints] involved a family member, [the investigation] should be hands-off by family." Id . Wilkinson told Roger that Marmon had complained to him about Jared's behavior approximately one month earlier, but that he had not reported the complaint at Marmon's request. Id. at 10-11. Roger "told  Wilkinson that that was not appropriate, " and directed Wilkinson and Mitchell to begin their investigation as soon as possible. Id. at 11. Specifically, Roger told them "to talk to  Marmon, find out what the problem [was], and then... investigate the whole matter." Id. at 9.
Wilkinson and Mitchell interviewed Marmon the following day. Wilkinson Dep. at 23-24. During that interview, Marmon identified several co-workers who he believed had witnessed Jared's harassment. Id . Wilkinson and Mitchell interviewed these Five Star employees approximately three weeks later. Id . This delay occurred, at least in part, because of Five Star's holiday schedule and the work schedules of various employee witnesses. Id. at 24; Marmon Dep. at 125-26. These individuals confirmed at least some of Jared's behavior, although one of Marmon's coworkers stated that he did not think that Marmon found the behavior offensive. See Deposition of Jason Huffman ("Huffman Dep.") at 11-12; Metcalf Dep. at 7-8; R. Garcia Dep. at 9-10; D. Garcia Dep. at 10-11; Wilkinson Decl. ¶ 4. Wilkinson and Mitchell also interviewed Roger Lilly, who stated that he did not recall hearing Jared singing to Marmon in November, as Marmon had described. Finally, Wilkinson and Mitchell interviewed Jared, who admitted to calling Marmon "bob on my knob, " singing a song with those lyrics, posting those lyrics on Marmon's machine, and attempting to "bag tag" Marmon on one occasion. Wilkinson Dep. at 37-38; Jared Dep. at 39-41. Jared testified that he did not know his actions offended Marmon until he had made a complaint. Jared Dep. at 46.
As a result of the investigation, Jared was issued a "reprimand pending suspension" on January 25, 2011. Wilkinson Dep. at 39; Jared Dep. at 39-41; Justin Dep. Ex. 16. In this reprimand, which was placed in his human resources file, Jared was warned that "any such further offensive remarks made toward  Marmon or other employees will not be tolerated, " and that any other "legitimate complaints will result in further disciplinary action up to and including termination." Justin Dep. Ex. 16. According to Mitchell, he and Wilkinson decided on this punishment for two reasons: first, Jared had no prior disciplinary record; and, second, Jared's behavior had occurred over a long period without any complaint from Marmon, making it difficult to discern "how upsetting" it had been. Mitchell Dep. at 22. Marmon testified that he believed this reprimand was only a "slap on the ...