United States District Court, W.D. Virginia, Roanoke Division
THOMAS W. DOOLEY, Plaintiff,
CAPSTONE LOGISTICS, LLC, et al., Defendants.
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE
Thomas W. Dooley asserts a hostile work environment claim and
a retaliation claim against his former employer, Capstone
Logistics, LLC,  under Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e. His
same-sex hostile work environment claim is based on conduct
by his direct supervisor, Curtis Howe, which included an
incident in which Howe pinched Dooley's buttocks and
another in which he made an offensive sexual
“joke.” Dooley further alleges that he was
terminated in retaliation for complaining about Howe's
before the court is Capstone's motion for summary
judgment (Dkt. No. 48), which is fully ripe and was argued
before the court. The court will grant the summary judgment
motion as to the hostile work environment claim because,
under the legal standards set forth by the United States
Supreme Court and the United States Court of Appeals for the
Fourth Circuit, Dooley has failed to put forth adequate
evidence from which a reasonable jury could find that
Howe's conduct toward him was “because of
sex.” The court concludes, however, that there are
disputes regarding material facts that preclude summary
judgment with regard to the retaliation claim. Thus, the
court will deny the summary judgment motion as to the
retaliation claim. For like reasons, the court will deny
summary judgment as to the punitive damages claim.
of the upcoming trial date, and in light of the parties'
own familiarity with the factual and legal issues, the court
will abbreviate its explanation of its ruling. In particular,
the court will discuss facts only in context, and as needed,
and will dispense with a statement of the standards governing
summary judgment under Federal Rule of Civil Procedure 56.
Same-Sex Hostile Work Environment Claim
Facts relevant to hostile work environment claim
began working for Capstone in October 2015 at a facility that
is a warehouse complex for the Kroger supermarket chain.
Several employers operate at that facility. He worked as a
switcher operator, towing trailers within the facility and
sometimes on public roads. For most of each shift, he was in
his switcher vehicle. Howe, Dooley's direct supervisor,
began working for Capstone in May 2016, and he generally
worked the same shift as Dooley. Ben Truett was Howe's
supervisor. Truett testified-without contrary testimony from
Dooley-that the Capstone work force of 70 to 90 people was
approximately 90 to 95% male. (Truett Dep. 29, Dkt. No.
60-5.) Likewise, Howe testified that it was about 95% male.
(Howe Dep. 22, Dkt. No. 60-4.) At least two of the women
there worked as administrative staff rather than as switcher
operators. (Truett Dep. 29; see also German Roman
Dep. 24-25, Dkt. No. 60-3 (testifying that he was a former
switcher operator for Capstone and that there was one female
driver and one female security guard during the shared time
of his and Howe's employment).) Truett testified that
there is some use of “salty” language by Capstone
employees in the overwhelmingly male workplace. (Truett Dep.
alleges that, on a near-daily basis, Howe winked at him and
waved at him in an “effeminate” way. (Dooley Dep.
59-60.) According to Dooley, he also saw Howe wink at
“some other guy[s] sometime[s].” (Id. at
56.) There were also two specific incidents that Dooley
relies on to establish his hostile work environment claim.
First, on or about June 26, 2016, Dooley was having trouble
communicating over the radio in his switcher, and he
commented at the end of the shift that he had a sore throat.
At the time, he was in an office with Howe and two other
employees. In response, Howe said something to the effect of,
“It's from all them dicks you have been
sucking.” (Dooley Dep. 67, Dkt. No. 60-2.) Dooley was
“pissed off” and “mad.” He went to
the bathroom and threw cold water on his face to
“control [his] temper.” (Id. at 68.) He
then walked out and told Howe “[D]on't you never
ever disrespect me like that again, ever.”
on or about July 8, 2016, Dooley claims that as he was
climbing into his switcher, Howe walked by and “pinched
[his] butt and said, ‘it's time to get to work,
child' or something similar to that.” (Id.
at 72.) According to Dooley, no one saw that
happen. Dooley was “pissed off, ” but
did not say anything to Howe at that time.
undisputed that, at some point after the July 8, 2016
incident, Dooley complained to Truett about Howe's June
26 comment. Dooley claims that, at the same time, he
complained about the butt-pinching incident, although there
is some conflicting evidence about what Truett did, if
anything, in response to Dooley's complaint. Dooley
admits that there were no additional incidents after Dooley
complained, other than the continued winking and waving.
Dooley was terminated about one week after the July 8
interpreted the winking, waving, and two incidents, taken
together, as Howe's expressing a sexual interest in him.
Relatedly, Dooley believed that Howe was gay, a belief that
Dooley discussed with other co-workers and that other
witnesses testified was their belief, as well. Dooley,
admits, however, that Howe never told Dooley he was gay, that
Howe never asked Dooley on a date or directly propositioned
him, that he never “came onto [him] sexually, ”
and that, to Dooley's knowledge, Howe never told anyone
he was gay. Furthermore, Howe denied in his deposition that
he is gay.
establish a Title VII hostile work environment claim, Dooley
must show that Howe's conduct was: (1) unwelcome; (2)
based on Dooley's sex; (3) “sufficiently severe or
pervasive to alter the conditions of [his] employment and to
create an abusive work environment”; and (4) that there
is some basis for imputing liability to Capstone.
Boyer-Liberto v. Fountainbleau Corp., 786 F.3d 264,
280 (4th Cir. 2015) (en banc) (setting forth elements of a
Title VII hostile work environment claim based on race);
Mikels v. City of Durham, 183 F.3d 323, 329 (4th
argues that it is entitled to summary judgment on the hostile
work environment claim for three independent reasons. First,
it claims that Dooley cannot prove that Howe's conduct
was because of Dooley's sex, so as to satisfy the second
element of his claim. Second, it contends that the harassment
was not severe or pervasive. Third, it argues that Howe's
behavior cannot be imputed to Capstone because it exercised
reasonable care to prevent and correct any harassing
court need not reach Capstone's second or third arguments
because it finds that the first one is persuasive. While it
may seem intuitive that the pinching of a person's
buttocks, regardless of the sex of the two individuals, is an
act based on sex, the Supreme Court and the Fourth Circuit
have cautioned that, to be actionable, alleged harassment
must be “discrimination because of sex, ” and not
conduct “merely tinged with offensive sexual
connotations.” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 81 (1998) (quotations omitted). That
is, it is not enough that the harassment “have sexual
content or connotations.” Id. at 80.
Additionally, the court must ...