United States District Court, W.D. Virginia, Roanoke Division
CARLA A. CLEHM Plaintiff,
BAE SYSTEMS ORDNANCE SYSTEMS. INC. et al. Defendants.
Michael F. Urbanski Chief United States District Judge
employment action, plaintiff Garla A. Clehm alleges that
while working as a tub house helper at the Radford Arsenal,
she was sexually assaulted by coworker Joshua Linkous and
later sexually harassed by other coworkers. She brings four
claims against her employer, defendant BAE Systems Ordnance
Systems, Inc.: sex discrimination and sexual harassment
(Count I) and retaliation (Count III), in violation of Tide
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2OOOe,
et seq., and assault and battery under a respondent
superior theory (Count II) and negligent hiring and retention
(Count IV), in violation of Virginia common law. Currently
pending before the court is defendant BAE Systems Ordnance
Systems, Inc.'s motion for summary judgment on all four
claims (ECF No. 153). Because there is insufficient evidence
from which a jury could find in Clehm's favor on any of
these claims, the court will GRANT BAE's
motion and dismiss this action with prejudice as to defendant
the federal defense contractor that operates the Radford Army
Ammunition Plant ("the Arsenal"), an ammunitions
manufacturing facility. Clehm began working at the Arsenal in
2005. Clehm Dep., ECF No. 154-2, at 36. From early 2014 to
2015, Clehm worked as a helper in the tub house within the
Nitrocellulose Area. Defendant Joshua Linkous worked as a
Nitrocellulose Chief Operator ("NCCO"), known
colloquially as a "tub house chief, " which is the
position ranking above tub house helper but still within the
bargaining unit, Id. at 72, 74, 78. Clehm was
sexually assaulted by Linkous at work on two occasions, once
on May 19, 2014 and again on or about June 5,
2014. Clehm reported the June assault to
coworker Steven Brunk, another NCCO and Clehm's superior
in the tub house, whom she has referred to as both a
"friend" and a "coworker." Clehm Dep.,
ECF No. 154-2, at 71, 102, 104, 122, 179; Clehm Dep., ECF No.
160-2, at 361-63; Exs. 22, 41, 43 to Clehm Dep., ECF No.
154-12. Clehm also called Group Leader L.A. Woods several
times and asked him to not put her on the same shift as
Linkous, but she did not explain why or tell Woods anything
about either of the incidents. Clehm Dep., ECF No. 154-2, at
104-05. Clehm admits that she did not immediately report
either incident involving Linkous to anyone beyond NCCO
Brunk, and she did not file reports with Human Resources
(HR), the labor union representing the Arsenal's workers,
or any of the other various channels BAE trains its employees
to use to report sexual harassment. Id. at 96-97,
28, 2014, HR Senior Labor Relations Manager Matt Linkous (no
relation to defendant Joshua Linkous) was informed that
another tub house helper, C.Q., had reported inappropriate
conduct by defendant Linkous. C.Q. made the allegation the
evening of July 27, 2014 to Group Leader L.A. Woods and Team
Leader Brian Sowers; Woods and Sowers then escalated the
allegation to Matt Linkous. M. Linkous Dep., ECF No. 154-14,
at 15-16; M. Linkous Decl.., ECF No. 154-26, at ¶ 20.
Matt Linkous, Woods, and Sowers immediately interviewed C.Q.
about her allegation, which she confirmed. M. Linkous Dep.,
ECF No. 154-14, at 16-17; M. Linkous Decl., ECF No. 154-26,
at ¶ 21. Matt Linkous informed HR Business Partner
Susanna Worrell that C.Q. had made allegations against
defendant Joshua Linkous, and the two noted that this was the
first time either of them had heard of any inappropriate
conduct involving him. M. Linkous Decl., ECF No. 154-26, at
¶¶ 20, 23.
Joshua Linkous returned to work the following day, oh July
29, 2014, BAE security intercepted him and escorted him to
Matt Linkous' office to be interviewed. M. Linkous Dep.,
ECF No. 154-14, at 17; M. Linkous Decl., ECF No. 154-26, at
¶ 24. Defendant Linkous initially denied any wrongdoing,
and Matt Linkous asked him to identify any other females with
whom he worked recently. Linkous identified Clehm. M. Linkous
Dep., ECF No. 154-14, at 18-19; M. Linkous Decl., ECF No.
154-26, at ¶ 26. Before that, Matt Linkous had never
heard Clehm's name mentioned in connection with any
alleged misconduct involving Joshua Linkous. M. Linkous
Decl., ECF No. 154-26, at ¶ 27. At the conclusion of the
interview, defendant Linkous was suspended, instructed to
surrender his badge, and escorted off of the premises. BAE
issued a "badge stop, " which effectively banned
Linkous from the Arsenal, and his photograph was held at the
security gate to further prevent entry until BAE could
conclude its investigation of the allegations against him.
Joshua Linkous never stepped foot inside the facility again.
M. Linkous Dep., ECF No. 154-14, at 27, 44-45; M. Linkous
Decl., ECF No. 154-26, at ¶ 28; Clehm Dep., ECF No.
(154-2, at 116.
same day, Matt Linkous interviewed Kevin Mason and Eldon
Meredith, both NCCOs, and asked whether they had information
regarding C.Q.'s allegations. Both Mason and Meredith
stated that C.Q. had told them about her issues with Linkous
but asked them not to report it further, and neither Mason
nor Meredith had personally witnessed anything between the
two. However, Mason then told Matt Linkous that he had
witnessed an interaction between Clehm and defendant Linkous,
after which Clehm looked upset, but Mason had not seen
anything inappropriate occur. M. Linkous Dep., ECF No.
154-14, at 20; M. Linkous Decl., ECF No. 154-26, at
Clehm's return to work on August 2, 2014, Matt Linkous
and HR Business Partner Susanna Worrell sought her out and
interviewed her. Clehm Dep., ECF No. 154-2, at 105-06, 109,
114. When Clehm was informed that her name had come up in
connection with BAE's investigation into Joshua Linkous,
her "face dropped and her lip began to shake" and
"[a]lmost immediately after she began to cry."
Clehm Dep., ECF No. 154-2, at 110, 117-18; M. Linkous Dep.,
ECF No. 154-14, at 19-20; Worrell Dep., ECF No. 154-18, at
25. Clehm described both the May and June 2014 incidents, and
stated no one had witnessed either. Clehm had only disclosed
the encounters to NCCO Brunk, her daughter, and her roommate.
Clehm Dep., ECF No. 154-2, at 185; M. Linkous Decl.., ECF No.
154-26, at¶ 34. Clehm explained that she did not report
her confrontations with defendant Linkous to 1 anybody else,
"[b]ecause I know what he can do." Clehm Dep, ECF
No. 154-2, at 120, 130. Clehm stated that she was afraid of
Joshua Linkous, fearing that he would come after her and try
to kill her. Id. at 118.
Linkous, on behalf of HR, continued meeting with potential
witnesses on August 5, 2014. He determined that defendant
Linkous should be discharged for this conduct, but kept him
suspended with a badge stop while HR continued its
investigation, due to the likelihood that the union would
file a grievance in response. M. Linkous Decl.., ECF No.
154-26, at ¶ 36. Further interviews revealed others were
victimized by defendant Linkous. For instance, on August 6,
2014, HR met with CO., who stated that she had been groped by
defendant Linkous four or five years earlier but did not
report it. The next day, HR met with L.P. who was similarly
assaulted by defendant Linkous a year prior but was too
ashamed to report it, and no one had witnessed the incident.
M. Linkous Decl., ECF No. 154-26, at ¶¶ 38-39.
HR's request, Clehm, C.Q., CO., and NCCOs Brunk, Mason,
and Meredith all submitted handwritten statements on August
8, 2014. Ldb at ¶ 41. That same day, Clehm informed Matt
Linkous that she had a Protective Order issued against
defendant Linkous on * August 7, 2014. Id. at ¶
42; Clehm Dep., ECF No. 154-2, at 232. On August 14, 2014, HR
completed its investigation and notified defendant Linkous
that his employment was terminated effective immediately. M.
Linkous Decl., ECF No. 154-26, at ¶¶ 42, 47. HR
also notified Clehm and the other victims that Linkous had
been discharged and the investigation had concluded.
Id. at ¶ 47.
aftermath of these events, Clehm suffered from various health
issues including migraines, inability to focus, debilitating
headaches, depression, anxiety, and panic attacks. Clehm
began seeking medical treatment for her stress at work and,
on August, 5, 2014, while BAE's investigation was still
ongoing, reported to her primary care doctor that she had
been sexually assaulted. Clehm Dep., ECF No. 154-2, at 156.
She later began seeking counseling from a licensed clinical
social worker, as well as from BAE's Employee Assistance
October 27, 2014, Clehm took FMLA leave. M. Linkous
'Decl., ECF No. 154-26, at ¶ 49, While on leave, BAE
approved Clehm for short term disability benefits pursuant to
company policy. Clehm testified at her deposition that
"time off work [had] helped a lot, just not being in the
place takes a little pain away." Clehm Dep., ECF No.
154-2, at 295-96.
January 12, 2015, Clehm attempted to pick up her medication
and was unable to do so because she no longer had insurance
coverage. Clehm insists no notice was sent to her explaining
why her coverage had been cancelled. Soon thereafter,
however, Clehm learned that her insurance coverage had been
cancelled due to non-payment of premiums. Clehm Dep., ECF No.
154-2, at 291, 296. Clehm later had these benefits reinstated
with assistance from HR. Id. at 296, 325.
Approximately two months later, Clehm received a letter from
BAE dated March 7, 2015, stating Clehm had exhausted her FMLA
leave and supplemental family and medical leave according to
BAE policy. Id. at 314. Clehm appealed this decision
and obtained additional documentation from her healthcare
providers, pursuant to which her leave was extended through
April 26, 2015.
not ready to return to work, Clehm had a conversation with HR
Director Amanda Burns on May 13, 2015, which was memorialized
in an email dated May 19, 2015. Burns explained to Clehm how
to appeal the cancellation of her medical benefits and stated
the company would "continue to do everything in [its]
power to assure that [Clehm] ha[s] the coverage to which [she
is] entitled." Ex. 85 to Clehm Dep., ECF No. 154-13.
Burns noted that Clehm had said she did not want to return to
work yet but felt she had to because she had exhausted her
FMLA leave and feared she would lose her job. Burns addressed
Clehm's concern, stating: "I told you and am
reaffirming in this letter that your job is not in jeopardy
and that we would absolutely grant you additional leave as a
necessary accommodation for your current needs."
Id. To that end, Burns offered Clehm an additional
unpaid leave of absence, which Clehm accepted. Burns stated
that she would contact Clehm at the end of each month to
assess whether Clehm was ready to return to work and
determine what measures might be taken by BAE to make Clehm
feel comfortable returning to work. If Clehm continued to
feel like she could not return to work, her unpaid leave
would be extended another month. Id.; see
also Clehm Dep., ECF No. 154-2, at 334. Burns reiterated
that BAE was willing to do whatever was necessary to
facilitate Clehm's return to work and make her feel
comfortable-altering her schedule to minimize interaction
with coworkers, escorting her to and from her car, and
entertaining any reasonable suggestion Clehm might have along
these lines. Ex. 85 to Clehm Dep., ECF No. 154-13; Clehm
Dep., ECF No. 154-2, at 335. Burns also stated BAE would pay
Clehm for 95 hours she had in the vacation leave bank as well
as for 36 hours that she had been scheduled to work, but
could not work, that past weekend, "as a sign of good
faith." Ex. 85 to Clehm Dep., ECF No. 154-13; Clehm
Dep., ECF No. 154-2, at 332-34. Clehm testified she was
appreciative of the leave extensions and the efforts to
facilitate her return to work. Clehm Dep., ECF No. 154-2, at
340, 342; Ex. 86 to Clehm Dep., ECF No. 154-13.
her return to work in September 2015, Clehm Dep., ECF No.
154-2, at 348, Clehm reported several incidents involving
coworkers that she found offensive and made her
uncomfortable. Clehm reported to supervisor Rusty Quesenberry
on February 24, 2016, that co-worker William Barton had been
"goosing" her by going up behind her to grab and
startle her. Clehm was particularly affected by the
"goosing" because Barton was grabbing the same
upper-arm and shoulder area that Linkdus had grabbed during
the second assault, and it gave her nightmares. Id.
at 356-59. Clehm also told Quesenberry that Robert Kennett, a
NCCO and a friend of Clehm's, told her during a shift
"that he wanted [her] legs on his shoulders so he could
give [her] a fuzzy mustache ride... [a]pparently referring to
oral sex[.]" Id. at 364. Clehm said he was
"being nasty" - calling her names like "hey
sexy, " and stating he could "satisfy" her
better than her boyfriend. Id. at 365.
had told her friend, NCCO Steven Brunk, about the situation
the previous day, and was visibly upset when recounting the
story to Quesenberry. She begged Quesenberry not to tell
anyone because she wanted to be left alone, as there was
"so much attention with the Josh Linkous case" and
she feared it would cause her more trouble at work.
Id. at 359, 366, 370; see Ex. 103 to Clehm Dep., ECF
No. 154-13. At Quesenberty's urging, Clehm met with L.A.
Woods, and later with Matt Linkous, about the incidents.
Id. at 371, 373; Ex. 104 & 105 to Clehm Dep.,
ECF No. 154-13. Woods asked Clehm if she felt comfortable
back in the tub house, and she responded affirmatively,
stating she "trusted the guys on that shift" Clehm
Dep., ECF No. 154-2, at 371; see also Id.
at 374; Ex. 104 to Clehm Dep., ECF No. 154-13. Woods offered
to move Clehm out of the tub house, but she Declined because
she "didn't want to be around strange men, "
and she "just wanted to come to work, do [her] job and
get home alive." Clehm Dep., ECF No. 154-2, at 372; Ex.
104 to Clehm Dep., ECF No. 154-13. Clehm told Woods that she
was okay and then returned to her shift. Clehm Dep., ECF No.
154-2, at 372; Ex. 104 to Clehm Dep., ECF No. 154-13.
Barton and Kennett were disciplined for these incidents, each
receiving a three-day suspension for "inappropriate
conduct." Clehm Dep., ECF No. 154-2, at 374-77, 383; Ex.
106 & 107 to Clehm Dep., ECF No. 154-13. The union filed
grievances over these suspensions, asking that they be
overturned and/or that Barton and Kennett be paid for the
three days and further demanding that BAE stop creating a
hostile work environment. Ex. 106 & 107 to Clehm Dep.,
ECF No. 154-13. BAE opposed the grievances. See Clehm Dep.,
ECF No. 154-2, at 377-383; Ex. 106 & 107 to Clehm Dep.,
ECF No. 154-13. N Rumors circulated that there was
a "petition" going around, signed by employees who
felt uncomfortable working with Clehm. See M. Linkous Decl..,
ECF No. 154-26, at ¶ 54; Ex. 106 & 107 to Clehm
Dep., ECF No. 154-JL3; Sowers Dep., ECF No. 154-21, at 27-28,
31; M. Linkous Dep., ECF No. 154-14, at 47; Clehm Dep., ECF
No. 154-2, at 378-79. Matt Linkous testified that his
investigation revealed there was not a petition per se, but
rather a list of employee signatures on a page entitled
"For Hostile Work Environment" attached to the
grievances filed in connection with the Barton and Kennett
suspensions. M. Linkous Dep., ECF No. 154-14, at 47; Ex. 106
& 107 to Clehm Dep., ECF No. 154-13. Matt Linkous told
the union president that to the extent there was such a
petition, "it stopped immediately." M. Linkous
Dep., ECF No. 154-14, at 47; see also Sowers Dep.,
ECF No. 154-21, at 28. One employee, Connie Clark, whose name
appears on the "For Hostile Work Environment" list
of names, approached Clehm and asked her "how she felt
about putting a man in prison and taking him away from his
family." M. Linkous Decl.., ECF No. 154-26, at ¶
55; M. Linkous Dep., ECF No. 154-14, at 47-48. Following
BAE's investigation into this incident, Clark also
received a three-day suspension. The union again filed a
grievance, which BAE opposed. M. Linkous Decl.., ECF No.
154-26, at ¶ 55.
continued to struggle with fear, intrusive thoughts and
difficulty sleeping, and on March 28, 2016, she went out on
short term disability leave with BAE's approval. Ex. 118
to Clehm Dep., ECF No. 154-13; Clehm Dep., ECF No. 154-2, at
388, 400. During that time, she maintained fairly regular
contact with Matt Linkous regarding her employment status.
Clehm Dep., ECF No. 154-2, at 400. By letter dated June 27,
2016, Matt Linkous advised Clehm that because she had no
remaining FMLA or other leave, part of her time off in March
had been treated in accordance with the collective bargaining
agreement, resulting in points being automatically applied to
Clehm's employment record. Id. at 401; Ex. 119
to Clehm Dep., ECF No. 154-13. He informed Clehm that BAE was
taking care of this by removing any disciplinary action
associated with her March leave and resetting her point total
to zero. Clehm Dep., ECF No, 154-2, at 401-02; Ex. 119 to
Clehm Dep., ECF No. 154-13. Clehm requested extension of her
leave three times, all of which were granted. See
Ex. 120 to Clehm Dep., EGF No. 154-13, By letter dated July
20, 2016, Matt Linkous confirmed that Clehm would continue to
receive short term disability leave through August 15, 2016.
Id. He asked Clehm to contact him after her next
doctor's appointment!to make arrangements for extending
her leave further or returning to work, to which end he
assured her: "we will work closely with you to ensure
that your return to work is met with a safe and productive
working environment. . . . We wish you the best and look
forward to your return when you are ready and able to do
prepared to return to work on a part time basis as of
September 19, 2016, requesting she return to the same work
location but only work night shift for a few weeks. Matt
Linkous confirmed BAE's willingness to accommodate that
request by letter dated September 19, 2016. Clehm Dep., ECF
No. 154-2, at 406; Ex. 125 to Clehm Dep., ECF No. 154-13.
Matt Linkous further stated that BAE would continue to work
with her to make her transition back to work comfortable and
pledged BAE would not tolerate any conduct inconsistent with
that goal. Ex. 125 to Clehm Dep., ECF No. 154-13.
returned to work as scheduled and on her first night in the
tub house, she "had trouble55 with the fill-in helper,
Paul Russell. Clehm Dep.?\ECF No. 154-2, at 412,
414. Clehm testified that Russell was angry with her for
returning to work and stated: "Wonder where the f***
I'm going to have to work now that you're back."
Clehm Dep., EGF No. 154-2, at 412. Clehm reported the
incident to supervisor Rusty Quesenberry, as well as to Matt
Linkous and L.A. Woods. Id. at 412-13. Russell was
given a verbal warning. M. Linkous Decl.., ECF No. 154-26, at
¶ 59. Subsequently, Clehm went back out on leave and
sought an extension of that leave through at least November
21, 2016, which BAE again granted. See Ex. 126 to Clehm Dep.,
ECF No. 154-13. By letter dated October 25, 2016, Matt
Linkous continued to express his willingness to facilitate
Clehm's return to work in a safe and productive
environment. Id. As of the summary judgment filing,
Clehm worked as a lab truck driver for BAE. M. Linkous
Decl.., ECF No. 154-26, at ¶ 64.
filed her first charge of discrimination on March 4, 2015,
received a right to sue letter, and timely filed the instant
action. Clehm later supplemented that first charge of
discrimination to include the incidents involving Barton and