# Bennett v. Pipe Work Solutions LLC

> District Court, N.D. Alabama · March 26, 2020

URL: https://www.frixlaw.com/law-library/cases/9989376

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9989376

## How later opinions describe it (automated extraction)

- holding that the act of grabbing another’s head and making pelvic thrusts in his face is boorish, vulgar, and unacceptable, but was not outrageous enough to satisfy the requisite element of outrage
- holding that a supervisor’s “isolated act”—carving the slur “porch monkey” in front of the plaintiff—was severe
- holding that “the use of [‘nigger’] on one occasion by one co-worker away from the workplace” was not severe, particularly because it was not directed at the plaintiff

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

DEMAR BENNETT, )
)
Plaintiff, )
)
v. ) Case No. 1:17-CV-858-CLM
)
PIPE WORK SOLUTIONS, )
LLC, and RAYMOND STOVER )
)
Defendants.
MEMORANDUM OPINION
Demar Bennett is a homosexual, African-American man. Bennett sues his
former employer, Pipe Work Solutions, LLC, and his former boss, Raymond Stover,
under 42 U.S.C. § 1981 and Title VII, alleging claims for hostile work environment
and sexual harassment. Bennett also alleges state-law claims for assault, battery, and
outrage. Defendants have moved for summary judgment on each claim. (Doc. 51).
For the reasons explained within, the Court grants in part and denies in part
Defendants’ motion. This case will move forward on Bennett’s §1981 hostile work
environment claim (Count I) and his state-law battery claim (Count III). All other
claims are summarily dismissed.
FACTUAL BACKGROUND
Pipe Work Solutions, LLC (“Pipe Work”) is a water and sewer pipe company

based in Anniston, Alabama. Raymond Stover founded Pipe Work in 2012. Stover
is Pipe Work’s president and 50% owner.1
Stover hired Demar Bennett in December 2015. Bennett worked in various

roles at Pipe Work, including administrative assistant, camera truck operator, project
manager, and Chief Operating Officer. About 14 months into the job, Bennett
resigned. In his resignation letter, Bennett cited Stover’s use of profanity, insults,
degrading comments, and violent tantrums as deciding factors.

Stover did, in fact, use derogatory and vulgar language when speaking to
Bennett, including racial and homophobic slurs. While crass language appears to
have been common around the Pipe Work workplace,2 it appears that no one crossed

the racial and homophobic line like Stover.
Specifically, Stover had a penchant for using the word “nigger.” One time,
after Bennett told Stover that he needed sleep because he had worked all day and
night, Stover told Bennett that he was “acting like a fucking nigger.” Another time,

when reviewing Bennett’s work, Stover said, “here you go, doing that fucking nigger

1 Wei Zhoa owns the remaining 50% interest in Pipe Work. Zhoa is a silent partner; he lives in China and is not
involved in Pipe Work’s day-to-day operations.

2 See Doc. 41, p. 6, ¶ 10.
work” and “looks like lazy nigger work.” On yet another occasion, during a work
phone call between Stover, Bennett, and Stover’s daughter, Brandi, Stover called

Bennett “a fucking nigger.” During the same phone call, Stover instructed his
daughter, who was in the same room as Bennett, to take him off speaker phone and
then called Bennett “that fucking nigger, that mother fucker, that mother fucking

nigger” so loudly that Bennett could hear each slur.
Stover’s use of “nigger” seems to have had few, if any, contextual limits. For
example, one time when Bennett told Stover that he was willing to accept additional
work responsibilities, Stover called Bennett the “head nigger in charge” in front of

several other Pipe Work employees. Bennett also alleges that Stover told him,
“you’re a proper nigger because you were raised semi-right.”
Nor was Stover’s use of the word limited to Bennett; he used it when talking

about other African-American employees too. For instance, Stover once told
Bennett, “you better come get this fucking nigger,” referring to Deunte Cooley,
another African-American employee.3 On another occasion, Stover told Bennett
that Kevin Milton, another African-American employee, “did nigger work

sometimes and . . . [would] give the nigger okay head,” and “[would] just do the
nigger bobble.”

3 At some point, Cooley dated Stover’s daughter, Brandi. During that time, Stover told Bennett several times that he
“didn’t mind [Brandi] dating a black guy, but he didn’t want her dating a nigger and [Cooley] was a nigger.”
Not only did Stover insult Bennett based on his race, he also insulted Bennett
based on his sexual orientation. Early in Bennett’s employment, a rubber sex toy in

the shape of a male genitalia fell out of a trash trap at the Pipe Work shop and Stover
said to Bennett, “there goes your toy.” Twice, Stover referred to Bennett “swinging
both ways.” Stover also told Bennett that his sexuality was “unnatural.” In addition,

while on a job, Stover called a sewer plug a sexual object to Bennett’s liking, and
allegedly tapped Bennett’s rear end with the plug and said, “this is something you
are used to.”
Insults may not be the only thing that Stover hurled at Bennett. Bennett alleges

that Stover threw a down-hole roller and a TV camera at him on separate occasions.
The parties agree that Stover threw the equipment in Bennett’s direction, and that
the down-hole roller hit Bennett, but Stover disputes that he intended to hit Bennett

with the equipment. When Stover threw the down-hole roller, it hit Bennett’s right
foot, causing it to swell. The swelling prevented Bennett from wearing boots or
coming to work for two days.
Bennett complained many times to Stover about his use of the word “nigger”

and his comments about Bennett’s sexual orientation. Bennett also complained about
Stover’s race-based comments to Wei Zhao, the 50% co-owner of Pipe Work.
Bennett ultimately resigned in April 2017. He then filed a complaint with the

Office of Federal Contract Compliance Programs (“OFCCP”). The OFCCP
investigated Bennett’s complaint and issued him a Right-to-Sue letter. Bennett
timely filed this lawsuit.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary
judgment always bears the initial responsibility of informing the court of the basis

for its motion and identifying those portions of the pleadings or filings which it
believes show the absence of a genuine issue of material fact. Id. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go

beyond the pleadings and by his own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing there is a
genuine issue for trial. Id. at 324. All factual inferences are resolved in favor of the
nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

A factual dispute is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
447 U.S. 242, 248 (1986).
ANALYSIS
In his Amended Complaint (doc. 21), Bennett asserts claims under 42 U.S.C.

§ 1981 for a racially hostile work environment (Count I), under Title VII for sexual
harassment (Count V), and under Alabama state law for assault, battery, and the tort
of outrage (Counts II, III, IV). The Court addresses the claims in that order.

I. Bennett’s Hostile Work Environment Claim Survives Summary
Judgment; His Constructive Discharge Claim Does Not.

Bennett labels Count 1 “Racial Discrimination pursuant to 42 U.S.C. § 1981.”
(Doc. 21, pp. 7). The majority of Count 1 alleges a hostile work environment. (Doc.
21, ¶ 26-32). But the last sentence of the last paragraph states: “The plaintiff was
forced to resign his employment in order to escape the physical and emotional abuse,
and has therefore lost wages and other benefits.” In their briefs, the parties treat this
sentence as a possibly distinct claim for constructive discharge, presumably under
Title VII. So, in an abundance of caution, the Court addresses both of Count 1’s

possible theories of relief: Hostile Work Environment and Constructive Discharge.
A. Bennett’s Hostile Work Environment claim survives summary dismissal.

To prove a hostile work environment claim, an employee must show that his
“workplace is permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of [his] employment and
create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993) (citation and internal quotation marks omitted); see also Shields v. Fort
James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002) (noting that Title VII and § 1981

hostile work environment claims have the same elements and are subject to the same
analytical framework). To establish a hostile work environment claim based on race,
a plaintiff must prove five elements:

(1) that he is a member of a protected class; (2) that he was subjected
to unwelcome racial harassment; (3) that the harassment was based on
his race; (4) that the harassment was severe or pervasive enough to alter
the terms and conditions of his employment and create a
discriminatorily abusive working environment; and (5) that the
employer is responsible for the environment under a theory of either
vicarious or direct liability.

Adams v. Austal, USA, LLC, 754 F.3d 1240, 1248–49 (11th Cir. 2014). Defendants
concede (for summary judgment only) that Bennett can establish the first, second,
third, and fifth elements listed above. (Doc. 52, pp. 16, 17). So Bennett’s claim
hinges on whether he can create a jury question that the harassment at Pipe Work
was “severe or pervasive enough to alter the terms and conditions of his employment
and create a discriminatorily abusive working environment.” Adams, 754 F.3d at
1248–49.
To satisfy the “severe or pervasive harassment” element, Bennett must show
that his work environment was both subjectively and objectively hostile. Mendoza
v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc). Bennett must first
establish that he “subjectively perceive[d] the environment to be abusive.” Harris,
510 U.S. at 21. Bennett must then show that his work environment was one “that a
reasonable person would find hostile or abusive.” Id.

Bennett easily clears the first hurdle (i.e. subjective perception). He repeatedly
complained to Stover, privately and in front of other Pipe Work employees, about
Stover’s racist remarks. (Doc. 53, p. 15, ¶ 10). Bennett also testified that he

experienced racial hostility at Pipe Work and referenced Stover’s harassment in his
resignation letter. Id. at p. 10, ¶ 31. Thus, a reasonable jury could conclude that
Bennett subjectively perceived his work environment as hostile and abusive.
In evaluating whether Bennett’s work environment was objectively hostile—

that is, whether another person would find the environment hostile—the Court must
consider four factors: “(1) the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a mere

offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee’s job performance.” Mendoza, 195 F.3d at 1246. Although these factors
help guide the inquiry, “the objective element is not subject to mathematical
precision.” Bryant v. Jones, 575 F.3d 1281, 1297 (11th Cir.2009). Instead, the Court

must view the evidence “cumulatively and in the totality of the circumstances.”
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010). With
this in mind, the Court evaluates each factor in turn:
1. Frequency of conduct: Bennett provides sufficient evidence of frequent
harassment. To start, Bennett testified that Stover used racial slurs, including the

word “nigger,” weekly or daily, and that Stover’s use of the word “nigger” was so
constant that it would be “impossible [for Bennett] to list every occasion.” (Doc. 41,
pp. 16, 18, 21). The Eleventh Circuit has considered such testimony when

determining the frequency of racial harassment. See, e.g., Smelter v. S. Home Care
Servs., 904 F.3d 1276, 1285 (11th Cir. 2018) (considering plaintiff’s testimony that
she heard racist comments “every day” as evidence of frequent racial harassment).
Bennett also provides many specific examples of Stover using racial slurs.

Stover does not dispute (at least for summary judgment) that he called Bennett and
other African American Pipe Work employees “niggers”; accused Bennett and other
African American employees of doing “nigger work”; accused Bennett of “acting

like a fucking nigger”; called Bennett a “mother fucking nigger” and “the head
nigger in charge”; and accused another African American employee of doing a
“nigger bobble.”
Stover instead argues that his use of racial slurs was too sporadic to create a

hostile work environment. Stover claims that, by his count,4 Bennett identifies only

4 The Court makes no finding that Stover’s count is accurate. Rather, the Court has identified additional instances,
set forth in Bennett’s interrogatory and deposition testimony, when Stover allegedly used racial slurs. For example,
Stover’s count omits Bennett’s testimony about an occasion when, upon learning that a piece of equipment had been
damaged, Stover allegedly told Bennett, “he was tired of this half-ass nigger work.” See Doc. 41, p. 17.
four times that he called Bennett a “nigger,” only three times that he used the slur
about other Pipe Work employees in front Bennett, and only two times that other

Pipe Work employees told Bennett that he used the slur. (Doc. 52, p. 16).
Stover relies heavily on the unpublished case Fortson v. Carlson, in which the
Eleventh Circuit held that the plaintiff failed to create a fact question about the

frequency of his harassment when he testified to only nine incidents involving
racially derogatory language (specifically, “black ass” or “black ass fool”) over his
two-and-a-half-year employment period. 618 F. App’x 601, 607 (11th Cir. 2015). In
Stover’s view, if the nine incidents in Fortson were not enough, then neither are the

nine incidents Stover acknowledges here.
Even if Fortson sets the bar, Bennett clears it, as he testified to at least the
same number of incidents as Fortson (nine), in less than half the time (14 months).

Fortson is also distinguishable in that Fortson’s coworkers, not his supervisor (as in
this case), harassed him. See also Adams, 754 F.3d at 1251-57 (distinguishing
harassment by supervisors and coworkers).
But this case is more like the published case Jones v. UPS Ground Freight, in

which the Eleventh Circuit held that the plaintiff created a fact question on the
pervasiveness of his harassment when he testified to seven racist incidents over a
one-year period. 683 F.3d 1283, 1304 (11th Cir. 2012).
Caselaw aside, Bennett offers at least nine specific examples of Stover saying
“nigger,” and he testified that Stover used the slur daily over a 14-month period.

This is ample evidence of frequent harassment.
2. Severity of conduct: Bennett offers evidence of “severe” misconduct at
Pipe Work, so this factor weighs heavily in his favor. The Eleventh Circuit has said

that “use of the slur ‘nigger’ is severe,” especially when, as here, the slur is (a) used
by a supervisor and (b) directed at the plaintiff, not just overheard by the plaintiff.
Adams, 754 F.3d at 1255. Indeed, the Eleventh Circuit has held that even one-time
use of the word can constitute severe harassment. Smelter, 904 F.3d at 1286

(“Southern Home argues that Smallwood’s ‘one-time use’ of [‘nigger’] was
insufficient to establish severity as a matter of law. We strongly disagree.”); see also
Adams, 754 F.3d at 1255 (holding that a supervisor’s “isolated act”—carving the

slur “porch monkey” in front of the plaintiff—was severe); cf. Butler v. Alabama
Dep't of Transp., 536 F.3d 1209, 1214 (11th Cir. 2008) (holding that “the use of
[‘nigger’] on one occasion by one co-worker away from the workplace” was not
severe, particularly because it was not directed at the plaintiff).

Here, not only did Stover repeatedly say “nigger” around Bennett, he directed
the slur at Bennett and other African American Pipe Work employees to demean
them and to disparage their work.5 Stover’s use of uniquely offensive and racist
language qualifies as severe harassment.

3. Physical Threat or Humiliation: The Defendants argue that Bennett has
presented no evidence of physically threatening harassment, arguing that Bennett
“points to no threats of physical violence” that accompanied Stover’s racist remarks.

But this factor is established by conduct that is “physically threatening or
humiliating.” Mendoza, 195 F.3d at 1246 (emphasis added).
Bennett testifies that Stover used the slur “nigger” around him daily. A
reasonable person could find that Stover intended for the slur to humiliate Bennett.

See Cooler v. Layne Christensen Co., 710 F. App’x 842, 848 (11th Cir. 2017) (“Here,
two of Cooler’s supervisors used the severe slur ‘nigger’ in an attempt to get a
reaction out of him. A reasonable person could perceive their intent was to humiliate

Cooler”). For example, a reasonable person could find it humiliating for Bennett to
hear his supervisor call his work “lazy nigger work,” and to call him a “fucking
nigger” and “the head nigger in charge.”
4. Interference with Job Performance: Bennett offers little evidence that

Stover’s harassment interfered with his day-to-day job performance, other than

5 The Defendants urge the Court to either ignore or afford diminished weight to Stover’s remarks that “were either
made about other Pipe Work employees . . . or were relayed second-hand to Bennett and did not relate to Bennett.”
(Doc. 51, p. 19). But in evaluating a plaintiff’s work environment in the totality of the circumstances, “we . . .
include other employees’ experiences that the plaintiff was aware of at the time.” Cooler v. Layne Christensen Co.,
710 F. App'x 842, 847 (11th Cir. 2017).
forcing Bennett to spend time meeting with Stover and others to address Stover’s
harassment. Accordingly, this factor does not weight in Bennett’s favor.

* * *
In summary, the only question here is whether a reasonable juror could find
that Stover’s harassment was severe or pervasive enough to alter the terms and

conditions of Bennett’s employment and create a discriminatorily abusive working
environment. Bennett easily meets three of the four factors set forth by the Eleventh
Circuit when judging the “severe or pervasive” element. Mendoza, 195 F.3d at 1246.
And as the Supreme Court has made clear, “no single factor is required” to

establish the objective component. Harris, 510 U.S. at 23. Instead, the court is to
judge the totality of the circumstances. Reeves, 594 F.3d at 808. Viewed in that lens,
the Court finds that the cumulative evidence presented by Bennett is enough to allow

a reasonable person to find that Stover’s harassment was severe or pervasive enough
to create an abusive work environment. Thus, Bennett’s hostile work environment
claim survives summary judgment.
B. Bennett’s Constructive Discharge Claim Does Not Survive Summary
Judgment.

Bennett ends Count 1 with the following sentence: “The Plaintiff was forced
to resign his employment in order to escape the physical and emotional abuse, and
has therefore lost wages and other benefits.” (Doc. 21, p. 8, ¶ 33). If Bennett intends
this sentence to raise a distinct claim of constructive discharge (as the parties discuss
in their briefs), it is summarily dismissed for two reasons.

1. Procedure: Placing one sentence about constructive discharge within a
distinct §1981 claim of hostile work environment violates Rules 8(a)(2) and 10(b).
See Bickerstaff Clay Prods. Co. v. Harris Cnty., 89 F.3d 1481, 1485 n. 4 (11th Cir.

1996) (“The complaint is a typical shotgun pleading, in that some of the counts
present more than one discrete claim for relief.”); Cesnik v. Edgewood Baptist
Church, 88 F.3d 902, 905 (11th Cir. 1996) (characterizing as a shotgun pleading a
complaint that “was framed in complete disregard of the principle that separate,

discrete causes of action should be plead in separate counts”); Novak v. Cobb Cnty.
Kennestone Hosp. Auth., 74 F.3d 1173, 1175 & n. 5 (11th Cir. 1996) (referring to a
complaint that pleaded multiple causes of action in a single count as “a quintessential

‘shotgun pleading’”). Simply put, if Bennett intended to plead a distinct claim of
constructive discharge, then he needed to plead that claim in its own count, with
enough facts and law to meet the Rules’ pleading requirements.
2. Merits: Even if Bennett met the pleading requirements, his constructive

discharge claim would fail as a matter of law. Constructive discharge entails a heavy
burden. A plaintiff must show that “working conditions were so intolerable that a
reasonable person in h[is] position would have been compelled to resign.” Poole v.

Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir. 1997); see also Virgo
v. Riviera Beach Assocs., 30 F.3d 1350, 1363 (11th Cir. 1994). This is a “more
onerous task than establishing a hostile work environment claim.” Bryant v. Jones,

575 F.3d 1281, 1298 (11th Cir. 2009). Indeed, to prove constructive discharge,
Bennett “must demonstrate a greater severity or pervasiveness of harassment than
the minimum required to prove a hostile working environment.” Id.

In addition, constructive discharge typically requires an adverse change in the
plaintiff’s work conditions. See, e.g., Poole v. Country Club of Columbus, 129 F.3d
551, 553 (11th Cir. 1997) (reversing summary judgment for the employer where
plaintiff was “[s]tripped of all responsibility, given only a chair and no desk, and

isolated from conversations with other workers”); see also Morgan v. Ford, 6 F.3d
750, 753 (11th Cir. 1993) (finding constructive discharge when the plaintiff prison
guard’s supervisor reassigned her to “the more distasteful duties around the [prison]

compound,” including assigning her “to the guard tower, although she did not have
proper weapons certification, to the unit for AIDS patients, and to the housing ward
for violent inmates.”).
Bennett does not allege that his job responsibilities were reduced or that his

work conditions were altered. On the contrary, at the time of his resignation, Bennett
continued to perform his typical work tasks. He experienced no pay cut or demotion,
nor was he isolated from his coworkers. Thus, even though Bennett offers sufficient

evidence of harassment to support his hostile work environment claim, he has failed
to establish that his working conditions were so intolerable that a reasonable person
would have felt compelled to resign.

Furthermore, in his resignation letter, Bennett expressed that he was quitting
not only because of Stover’s harassment, but also because of “differences of opinion
regarding the processes, work assignments, and goals for how [the parties’] original

work agreement was supposed to play out.” (Doc. 41, p. 9). His resignation letter
reads: “It is clear to me that you and I will not be able to resolve our differences.
Therefore, I feel that resigning is the best option for me.” Id.
A resignation is considered voluntary if the plaintiff had a choice, even if the

alternatives to resignation may be unpleasant. See Hargray v. City of Hallandale, 57
F.3d 1560, 1568–69 (11th Cir. 1995). Bennett’s resignation letter shows that he
voluntarily chose to resign. A reasonable person in Bennett’s shoes may have also

chosen to resign but would not have been compelled to do so. As a result, Bennett’s
constructive discharge claim fails as a matter of law.
II. Bennett’s Sexual Harassment Claim Fails As A Matter Of Law.
Bennett titles Count V “Sexual Harassment in Violation of Title VII.” In it,

Bennett alleges that he was “exposed to vulgar and degrading sexual comments and
statements, and was subjected to discrimination based on his sexual orientation.”
(Doc. 21, p. 12, ¶ 51) (emphasis added). Under Eleventh Circuit precedent, however,

Title VII sexual orientation claims are invalid. Evans v. Georgia Reg'l Hosp., 850
F.3d 1248 (11th Cir.), cert. denied, 138 S. Ct. 557 (2017). See also Bostock v.
Clayton Cty. Bd. of Commissioners, 723 F. App’x 964 (11th Cir. 2018), cert.

granted, 139 S. Ct. 1599 (U.S. April 22, 2019) (No. 17-1618) (reaffirming Evans).
In Evans, the Eleventh Circuit reaffirmed that sexual orientation is not a
protected classification under Title VII. Id. at 1255-57; see also Fredette v. BVP

Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997); see also Blum v. Gulf Oil
Corp., 597 F.2d 936, 938 (5th Cir. 1979). As a result, Bennett’s discrimination claim
“based on his sexual orientation” as a male homosexual fails as a matter of law.
Despite unambiguously claiming in his Amended Complaint that he was

discriminated against and harassed based on his sexual orientation, Bennett now
attempts to recast his claim as a same-sex sexual harassment claim. (Doc. 53, p. 28).
Bennett’s attempt fails for two reasons.

First, Bennett cannot assert a new claim in response to summary judgment.
See Flintlock Const. Services, LLC v. Well-Come Holdings, LLC, 710 F.3d 1221,
1227–28 (11th Cir. 2013) (“This court's precedent foreclosed [plaintiff’s] attempt to
amend its complaint at the summary judgment stage without seeking leave of court

pursuant to Rule 15(a)(2).”); see also Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir.2004) (“At the summary judgment stage, the proper procedure
for plaintiffs to assert a new claim is to amend the complaint in accordance with

Fed.R.Civ.P. 15(a).”).
Second, Bennett offers no evidence to support a same-sex harassment claim.
To establish same-sex harassment, a plaintiff must prove: (1) the harasser is

homosexual; (2) the harasser has a gender-based hostility towards a particular sex;
or (3) the harasser treated members of one sex differently than the other sex. See
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77 (1998) (requiring a

plaintiff to “prove that the conduct at issue was not merely tinged with offensive
sexual connotations, but actually constituted discrimination because of sex.”)
(internal quotations omitted). Bennett offers no evidence that (1) Stover is
homosexual, (2) Stover as a gender-based hostility towards men, or (3) Stover

treated men differently then women in the workplace due to their sex. So even if
Bennett could claim same-sex harassment, his claim would fail as a matter of law.

III. Bennett’s Battery Claim Survives Summary Judgment, But His Assault
Claim Does Not.

Bennett raises a state-law claim of assault in Count II (doc. 21, pp. 8) and a
state-law claim of battery in Count III (doc. 21, pp. 9). While they are distinct claims,
assault and battery are often analyzed together because they involve overlapping
elements and facts. The Court does so here.
1. The law: Under Alabama law, assault is “an intentional, unlawful, offer to
touch the person of another in a rude or angry manner under such circumstances as

to create in the mind of the party alleging the assault a well-founded fear of an
imminent battery, coupled with the apparent present ability to effectuate the attempt,
if not prevented.” Hester v. Brown, 512 F. Supp. 2d 1228, 1235 (N.D. Ala. May 25,

2007) (internal citations omitted).
When an assault is “successful,” it becomes a battery. Wright v. Wright, 654
So. 2d 542, 544 (Ala. 1995). The elements of battery are: (1) that the defendant

touched the plaintiff; (2) that the defendant intended to touch the plaintiff; and (3)
that the touching was conducted in a harmful or offensive manner. Wood v. Cowart
Enters., 809 So. 2d 835, 837 (Ala. Civ. App. 2001).
2. The incidents: Bennett’s assault and battery claims stem from two separate

incidents when Stover allegedly threw work equipment at him. (Doc. 21, pp. 9–10,
¶¶ 35, 40). First, Bennett alleges that shortly after he began working for Pipe Work,
Stover threw a piece of equipment called a “down-hole roller” at him, striking him

in the foot. Because Bennett was hit, this is the battery claim. Second, Bennett
alleges that on the day before he resigned, Stover threw a camera at him but did not
strike him with it. This is the assault claim.
Bennett brings both claims not only against Stover, but also against Pipe Work

on a theory of vicarious liability, arguing that Stover was acting within the line and
scope of his employment with Pipe Work when the incidents occurred.
The Defendants argue that both claims fail as a matter of law because Bennett
has failed to provide sufficient evidence that Stover intended to hit or touch him.
The Court agrees as to Bennett’s assault claim but disagrees as to his battery claim.
3. Battery: With respect to his battery claim, Bennett testified that Stover was
upset at him when the incident occurred. (Doc. 51, p. 186). Bennett also testified that
he and Stover were communicating as the incident occurred and that Stover knew
where Bennett was standing when he threw the equipment. (Doc. 51, p. 188).
Bennett testified that Stover told him “you’re in the damn way” when he threw the
equipment, and that he did not apologize afterwards:

14 Q Did he say anything to you, either
15 before or after the throw, to indicate that he
16 intended to hit you?
17 A Either you're in the damn way or get
18 out of the damn way, something like that. There was
19 no excuse me or sorry or I didn't know, so I assumed
20 it was intentional, since there was no apology.

(Doc. 51, p. 190). Based on this evidence, a reasonable jury could determine that
Stover intended to hit Bennett with the down-hole roller. See Surrency, 489 So. 2d
at 1104 (“[W]hen there is conflicting evidence . . . the issue of whether there was, in
fact, an assault and battery at all is a question for the jury.”)

4. Assault: The same cannot be said for Bennett’s assault claim. In Bennett’s
brief testimony about the incident, he does not allege that Stover was angry with him

at the time, that Stover knew where he was standing, or that Stover made any
comments showing an intent to strike him. (Doc. 51, p. 189). Thus, Bennett has not
created a jury question on Stover’s required intent. Bennett’s bare allegations,

without more, are too speculative and conclusory to survive summary judgment.
Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013)
(speculative factual inferences are not reasonable for summary judgment purposes);
Celotex Corp., 477 U.S. at 324 (plaintiff must go “beyond the pleadings” to show a

genuine issue for trial).
Finally, although he asserted no such claim in his Amended Complaint,
Bennett tries to assert another battery claim in his summary judgment response based

on an incident when Stover allegedly “tapped Bennett on his rear end in a sexual
nature.” (Doc. 53, pp. 24.) But as discussed in Part II, Bennett cannot assert new
claims in his response to summary judgment. Flintlock, 710 F.3d at 1227–28. Thus,
Bennett’s newly alleged claim fails as a matter of law.

IV. Bennett’s Outrage Claim Fails As A Matter Of Law.

Finally, in Count IV, Bennett alleges that the “racial discrimination and
physical violence” described in his other claims amounts to the state-law tort of
outrage. (Doc. 21, pp. 10).
Under Alabama law, to establish the tort of outrage, a plaintiff must prove that
the defendant’s conduct: “(1) was intentional or reckless; (2) was extreme and

outrageous; and (3) caused emotional distress so severe that no reasonable person
could be expected to endure it.” Harrelson v. R.J., 882 So. 2d 317, 322 (Ala. 2003)
(quoting Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d 1041, 1043 (Ala.

1993)). Alabama has further defined the tort of outrage as follows:
[O]ne who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to
liability for such emotional distress and for bodily harm resulting from
the distress. The emotional distress thereunder must be so severe that
no reasonable person could be expected to endure it. Any recovery must
be reasonable and justified under the circumstances, liability ensuing
only when the conduct is extreme. By extreme we refer to conduct so
outrageous in character and so extreme in degree as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized society.

Harrelson, 882 So. 2d at 331-32 (citing Am. Rd. Serv. Co. v. Inmon, 394 So. 2d 361,
365 (Ala. 1980)) (internal citations omitted); see also Thompson v. City of
Birmingham, 5 F. Supp. 3d 1304, 1329 (N.D. Ala. 2014) (holding that the tort of
outrage applies “only in flagrantly egregious circumstances”) (internal quotations
omitted); see also Surrency, 489 So.2d at 1105 (recognizing the plaintiff's burden is
a “heavy” one).
The tort of outrage is “extremely limited,” and the Alabama Supreme Court
“has recognized it in regard to only three kinds of conduct: (1) wrongful conduct in
the family-burial context, Whitt v. Hulsey, 519 So.2d 901 (Ala. 1987); (2) barbaric
methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co.

v. Bowen, 447 So.2d 133 (Ala. 1983); and (3) egregious sexual harassment, Busby
v. Truswal Sys. Corp., 551 So.2d 322 (Ala. 1989).” Potts v. Hayes, 771 So. 2d 462,
465 (Ala. 2000).

Indeed, both the Alabama Supreme Court and the Eleventh Circuit have been
extremely reluctant to extend the tort of outrage to other categories of conduct. See,
e.g., Stancombe v. New Process Steel LP, 652 F. App'x 729, 732 (11th Cir. 2016)
(holding that the act of grabbing another’s head and making pelvic thrusts in his face

is boorish, vulgar, and unacceptable, but was not outrageous enough to satisfy the
requisite element of outrage); McIsaac v. WZEW-FM Corp., 495 So. 2d 649, 651
(Ala. 1986) (holding that no extreme or outrageous conduct occurred when the

defendant-supervisor stated that he wanted to have an affair with the plaintiff,
attempted to kiss her, made suggestive remarks, touched her and put his arm around
her, and then terminated her employment because she had refused his advances).
Here, however, the Court need not determine whether the conduct at issue is

outrageous enough to justify expanding the tort, because Bennett has offered no
evidence on an essential element of the tort—i.e. that he suffered extreme emotional
distress. In his brief, Bennett overlooks this element and instead focuses exclusively

on nature of the conduct at issue. Because Bennett offers no evidence he suffered
“emotional distress so severe that no reasonable person could be expected to endure
it,” Harrelson, 882 So, 2d at 322, his claim necessarily fails.

CONCLUSION
For these reasons, the Court hereby GRANTS the Defendants’ motion for

summary judgment on Bennett’s Title VII sexual harassment claim (Count V) and
his state-law assault and outrage claims (Counts II & IV). The Court DENIES the
Defendants’ motion on Bennett’s §1981 hostile work environment claim (Count I)
and state-law battery claim (Count III). The Court also finds that Bennett’s Amended
Complaint does not state a claim for constructive discharge, and if it did, that claim
would be summarily dismissed. The Court will issue a separate order carrying out
these findings.
DONE and ORDERED this 26th day of March, 2020.

/ eesel Mex LK
COREY. MAZE
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989376. Public record. Not legal advice.