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Clehm v. BAE Systems Ordnance Systems. Inc.

United States District Court, W.D. Virginia, Roanoke Division

December 4, 2017

CARLA A. CLEHM Plaintiff,
v.
BAE SYSTEMS ORDNANCE SYSTEMS. INC. et al. Defendants.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski Chief United States District Judge

         In this 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).[1] 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 BAE.

         I.[2]

         BAE is 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.[3] 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.[4] Id. at 96-97, 102-03, 106-07.

         On July 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.

         When 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.

         That 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 ¶¶ 29-30.

         Upon 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.

         Matt 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.

         At 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.

         A.

         In the 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 Program.

         On 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.

         On 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.

         Still 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.

         B.

         Following 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.

         Clehm 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.

         Both 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.

         Clehm 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 so." Id.

         Clehm 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.

         Clehm 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.

         Clehm 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 ...


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