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Wheeler v. Commonwealth

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

February 20, 2019

TRACEY WHEELER, Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, et al, Defendants.

          MEMORANDUM OPINION

          HON. GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE.

         Tracey Wheeler filed this action against the Commonwealth of Virginia, the Virginia Department of Alcoholic Beverage Control, the Virginia Alcoholic Beverage Control Board (collectively, "ABC"), and David Chrisley. Wheeler asserts claims of hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII") against ABC, and related claims of assault and battery against Chrisley. The case is presently before the court on ABC's motion for summary judgment.[1] The court held a hearing on the motion via teleconference on January 23, 2019. The motion has been fully briefed and is now ripe for review. For the following reasons, the motion will be granted in part and denied in part.

         Background

         The following facts are either undisputed or presented in the light most favorable to Wheeler. See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 255 (1986) (emphasizing that "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor," when ruling on a motion for summary judgment).

         On June 9, 2014, ABC hired Wheeler to work as a part-time sales associate. John Singleton Decl. ¶ 5, Dkt. No. 113-1. Wheeler was ultimately assigned to ABC Store No. 229 in Bonsack, Virginia. Wheeler Dep. 10, Dkt. No. 120-1. A few weeks after Wheeler began working at the Bonsack location, the store manager, Jennifer Stutts, broke her ankle. Stutts Dep. 12, Dkt. No. 120-3. While Stutts was on leave, other ABC employees, including David Chrisley, filled in for Stutts. Id. 12-13.

         At the time of Wheeler's hiring, Chrisley worked as a "relief assistant manager." Singleton Decl. ¶ 6. In that supervisory position, Chrisley would oversee a particular store's operations while the manager or assistant manager was unavailable. IcL One of Chrisley's "core responsibilities" was "staffing management," which included assisting store managers with "maintaining a properly staffed operation of wage employees" and "recruiting, screening applications and interviewing" job applicants. Employee Work Profile 5, Dkt. No. 120-20; see also id. 1 (listing Chrisley's position level as "supervisor").

         Wheeler and Chrisley worked together for the first time at the Bonsack store in July of 2014. Wheeler claims that Chrisley was "extremely flirtatious" from the start of their shift. Wheeler Dep. 124. For instance, Chrisley commented on Wheeler's attractiveness and told her that she "would probably never be interested in someone like him." Id. 214. Chrisley also recommended that customers use Wheeler's checkout line because she was "better looking." Id. After they discussed the fact that standing still can lead to back pain, Chrisley advised Wheeler that he was an "expert masseuse." Id. 38.

         Chrisley proceeded to make lewd sexual remarks and advances toward Wheeler. Prior to the end of their shift, Chrisley told Wheeler that he "knew Kama Sutra" and "went on and on about the best sex positions."[2] Id. 122, 124. After closing the store, Chrisley and Wheeler entered a back room, where they were responsible for clocking out on a computer. When Wheeler turned around after clocking out, Chrisley was standing right behind her. Id. 37. He patted a nearby desk and directed Wheeler to sit down. Id. Chrisley then began to massage and pull on Wheeler's fingers. Id. 41-42. While doing so, Chrisley's face was "red and sweaty," and he was "breathing very hard" and moaning. Id. 197-98. In response, Wheeler abruptly stood up and pulled her hand from Chrisley's grasp. Id. 44, 198-99. Because Chrisley was blocking her path and appeared unwilling to let her to leave, Wheeler had to physically "push past him" in order to exit the room. Id. 44, 129, 199. She then retrieved her purse and waited by the front door of the store until the alarm system was disabled. As soon as she was able to exit the store, Wheeler went straight to her vehicle. Id. 45. By that point, Wheeler felt "very panicky" and had "vomit in [her] mouth." Id. 46.

         At that time, and at all times relevant to this case, ABC had a "zero tolerance" workplace harassment policy. Patrick Campbell Dep. 37, Dkt. No. 120-2; Faith Richardson Dep. 40, Dkt. No. 120-13. The written policy listed "several options" for reporting harassment, including speaking to any supervisor:

1. An employee may choose to report allegations of workplace harassment to any agency, manager, supervisor, or Division Director that they feel comfortable reporting to.
2. An employee may also choose to report directly to the Director of Human Resources or the Employee Relations Manager.

         Harassment Policy 1, Dkt. No. 113-1. The policy further provided that "[m]anagers or supervisors receiving complaints of workplace harassment have a duty to report allegations" and that they "must notify their Division Director within 24 hours or by close of business the next day." Id. at 1-2.

         Wheeler's evidence indicates that she reported Chrisley's offending conduct to several individuals in supervisory roles, including Stutts, the store manager. Stutts Dep. 13. Wheeler advised Stutts about the incident that occurred in the back room of the store and emphasized that she would not feel comfortable working with Chrisley again:

[I told Stutts that Chrisley] was very flirtatious, that he came on to me, that he was very close to me in speaking, that I didn't have any space. I told her that I was uncomfortable about working with him. I told her that when we closed and we were finishing, that he had told me my money was short and that he had me sit on the desk.
I told her that he patted the desk for me to sit down there on the spot, that he began to try to massage my hands. I told her he was very sweaty. He seemed to be making a noise and I had to push past him, and I never wanted to work with him again.

Wheeler Dep. 26-27.

         It is undisputed that Stutts did not report Wheeler's allegations of workplace harassment to her Division Director, the Director of Human Resources, or the Employee Relations Manager, as required by the harassment policy. Instead, Stutts "simply made sure [Wheeler and Chrisley] did not work together" at the Bonsack location. Stutts Dep. 15. As a result, no disciplinary action was taken against Chrisley at that time.

         Wheeler did not work with Chrisley again for approximately two years and she "was okay with that." Wheeler Dep. 82. However, the plaintiffs evidence indicates that Chrisley also engaged in inappropriate conduct with other women. See, e.g., Gail Dollman Dep. 16-17, Dkt No. 120-6 ("I have seen customers complain. I have seen customers leave the store because of [Chrisley's] . . . aggressive flirting."); see also Id. at 21 (describing an occasion on which the deponent observed Chrisley giving another female employee a massage while the employee was lying on a table in the back room). The "consensus" among managers was that none of them wanted Chrisley working in their stores. Stutts Dep. 10-11.

         On April 8 and 9, 2016, Wheeler and Chrisley were scheduled to work together at the Bonsack store. Wheeler Dep. 101. Wheeler learned ahead of time from another employee that she and Chrisley would be working together. Although Wheeler "wanted to just call in and miss pay," she ultimately decided to report for work since other employees would be present. Id.

         On the first day that they were assigned to work together, Wheeler's efforts to ignore Chrisley and avoid having any contact with him proved unsuccessful. Chrisley approached Wheeler "right off the bat" and began humming "the Let's Talk About Sex song." Id. 101-02. He then poked Wheeler in her sides and back while she was unloading cases of liquor, and "pull[ed] his goatee down and lick[ed] his lips" when she walked by him. Id. 102, 202. Chrisley also cornered Wheeler in ...


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