United States District Court, W.D. Virginia, Abingdon Division
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
APPALACHIAN POWER CO., Defendant.
Deborah A. Kane, U.S. Equal Employment Opportunity
Commission, Pittsburgh, Pennsylvania, and Debra M. Lawrence
and Ronald L. Phillips, U.S. Equal Employment Opportunity
Commission, Baltimore, Maryland, for Plaintiff;
M. Winn, III, and Patice L. Holland, Woods Rogers PLC,
Roanoke, Virginia, for Defendant.
OPINION AND ORDER
P. Jones, United States District Judge
Title VII sexual harassment and retaliation case brought by
the Equal Employment Opportunity Commission
(“EEOC”), I will grant in part and deny in part
the defendant’s Motion for Summary Judgment.
following facts are taken from the summary judgment record
and are stated in the light most favorable to the plaintiff.
Kade was a temporary administrative worker at Appalachian
Power Company’s (“APCO”) Clinch River
plant. She initially learned of the position through her
stepfather, who worked at the plant, but she was paid through
a staffing agency (first Day and Zimmerman, Inc., and later
Kelly Services). She began working at the plant in November
supervisor at APCO was James Brinkman. Kade testified that
Brinkman began to sexually harass her in April 2017. Before
then, Kade thought Brinkman was strange and had anger issues,
and he gave her gifts, but he did not do anything that she
construed as sexual harassment. Some of the gifts he gave her
were significant, including monetary gifts of $1, 500 and
$500. He suggested, and she believed, that he was simply
trying to help her because she was struggling financially. He
also gave her and another temporary employee restaurant gift
April 2017, Brinkman asked Kade to work overtime on a
Saturday to help him paint an office. When they finished
painting, he followed her to her desk and told her that he
had a crush on her. He told her that she was beautiful and
had a great personality, that he had feelings for her, and
that he loved her. She responded by telling him that she was
there to work and provide for her children.
testified that over the coming months, Brinkman continued to
make inappropriate comments to her such as that he caught
himself “all the time looking at [her] ass, ” she
was beautiful, he loved her, she was his sunshine, and he
wanted to leave his wife to be with her. Pl.’s Br.
Opp’n Ex. A, Kade Dep. 15, ECF No. 44-3. In a
declaration filed in opposition to the Motion for Summary
Judgment, Kade stated that he made such comments several
times a week, and she always responded that she was there to
work and provide for her children.
testified that Brinkman would become jealous or angry when
she was around other men or when she did not respond
positively to his comments. He would sometimes slam doors or
slam books and papers onto desks. Although he apparently did
these things throughout her employment at the plant, she did
not begin to connect his displays of anger with sexual
harassment until after he revealed his feelings for her in
April 2017. After one such angry outburst, he sent a box of
chocolate-covered strawberries to her house with a note
indicating that they were meant as an apology. In her
declaration, Kade stated that Brinkman yelled at her nearly
weekly and that she found his displays of anger threatening.
also testified that Brinkman would follow her around the
plant and join her uninvited for smoke breaks. She expressed
her annoyance with this to other employees, but several
coworkers testified that they thought Kade and Brinkman were
friends because they spent a great deal of time together and
seemed to enjoy each other’s company.
testified that she told coworker Carol Vicars about
Brinkman’s comments, but Vicars discouraged her from
complaining unless Brinkman was touching her because a former
employee had complained about harassment in the past and had
been fired. Kade also told Chris Cline, the maintenance
supervisor, about Brinkman’s comments. Cline witnessed
Brinkman slamming doors, but he simply shook his head and
took no action. Kade relayed to Robert Frazier a comment that
Brinkman had made about leaving his wife. Frazier offered to
do something about the situation, but Kade told him not to do
anything and that Brinkman was just being socially awkward.
Vicars testified that Kade would vent to her about Brinkman
but never seemed to feel belittled or harassed by him.
testified that Brinkman told her that he knew she could get
him into a lot of trouble, but she would not because he would
“pull rank and terminate [her].” Id. at
22. She says she did not complain to management because she
was fearful of his threat. She was a single mother of two
teenage daughters and needed the money she was earning from
her work at the plant.
terminated Kade on October 17, 2017, a Tuesday. Kade
testified that over the preceding weekend, Brinkman had sent
her a text message saying that he wanted to take her out and
treat her like a queen. She did not respond. She had told him
that she would be taking her daughters to the dentist that
Monday and, depending on how long the appointment lasted, she
might not make it to work. Kade lived an hour and a half from
the plant, and her workday typically ended at 3:30 PM.
testified that he sent Kade a text message on Monday asking
how things were going, referring to the dentist appointment,
in order to determine whether she would be coming to work.
She did not respond to his text message. Brinkman was not at
the plant on Monday either, but he testified that on the
preceding Friday, he had left her some work to complete on
to Kade, when she arrived at the plant on Tuesday,
Brinkman was in a bad mood. Kade testified that he was upset
that she had not responded to his recent text message in
which he said he wanted to come to her home, take her out,
and treat her like a queen. Brinkman testified that he
confronted her about not responding to his text message
regarding whether she would be coming to work on Monday. In
her declaration, Kade stated that she walked away from him
and he followed her down the hallway, saying, “mmm,
mmm, mmm, ” which she took to be expressing sexual
interest in her body. She turned around, pointed her finger in
his face, and said, “I’m not putting up with your
shit today.” Id. at 21. Brinkman responded by
telling Kade she was terminated.
contends he terminated her because of her no-call, no-show
the day before, along with prior attendance issues. He sent
his supervisor, Lyle Hartsock, an email at 6:59 AM on October
17, 2017, in which he wrote, “FYI, I just terminated
Lea this morning. She once again didn’t show up
yesterday and did not let me know. She displayed a little bit
of an attitude when asked about it and since it wasn’t
the first time, I decided I’d had enough.”
Def.’s Mem. Supp. Ex. 8, Brinkman Dep. 36, ECF No.
gathered her things and left, crying. She ran into Frazier in
the parking lot, where she told him Brinkman had fired her
for not responding to his text. She testified that she had
been referring to the text in which Brinkman told her he
wanted to take her out, but she did not explain this to
Frazier. She also sent a text message to Vicars stating that
Brinkman had fired her for not responding to his text, but
she did not explain further to Vicars either.
called Kade the next day, asking her to talk to him and let
him make things right. She hung up, but he called back and
again asked if they could work things out. Kade told Brinkman
he had fired her for not submitting to his ...