United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE.
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. 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.
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).
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.
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").
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."
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." 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.
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
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.
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
Wheeler Dep. 26-27.
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.
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.
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.
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 ...