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U.S. Equal Employment Opportunity Commission v. Appalachian Power Co.

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

September 24, 2019

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
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;

          Thomas M. Winn, III, and Patice L. Holland, Woods Rogers PLC, Roanoke, Virginia, for Defendant.

          OPINION AND ORDER

          James P. Jones, United States District Judge

         In this 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.

         I.

         The following facts are taken from the summary judgment record and are stated in the light most favorable to the plaintiff.

         Lea 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 2016.

         Kade’s 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 cards.

         In 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.

         Kade 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.

         Kade 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.

         Kade 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.

         Kade 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.

         Kade 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.

         Brinkman 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.

         Brinkman 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 Monday.

         According to Kade, when she arrived at the plant on Tuesday, [1] 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.[2] 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.

         Brinkman 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. 35-8.

         Kade 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.

         Brinkman 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 ...


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