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Dooley v. Capstone Logistics, LLC

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

June 19, 2018

THOMAS W. DOOLEY, Plaintiff,
CAPSTONE LOGISTICS, LLC, et al., Defendants.



         Plaintiff Thomas W. Dooley asserts a hostile work environment claim and a retaliation claim against his former employer, Capstone Logistics, LLC, [1] 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 conduct.

         Pending 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.

         Because 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.

         I. Same-Sex Hostile Work Environment Claim

         A. Facts relevant to hostile work environment claim

         Dooley 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. 55.)

         Dooley 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.” (Id.)

         Second, 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.[2] Dooley was “pissed off, ” but did not say anything to Howe at that time.

         It is 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 incident.

         Dooley 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.

         B. Discussion

         To 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 Cir. 1999).

         Capstone 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 behavior.

         The 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 ...

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