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Shell v. Hilliard

July 27, 2007

MICHAEL W. SHELL, PLAINTIFF,
v.
J.J.B. HILLIARD, W.L. LYONS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Phillips

MEMORANDUM AND ORDER

Plaintiff has sued his former employer alleging that he was subjected to a sexually hostile work environment in violation of Title VII, 42 U.S.C. § 2000e, and the Tennessee Human Rights Act (THRA), Tenn. Code Ann. § 4-21-301. Plaintiff has also alleged that the hostile work environment violated his contractual right under the company's Code of Ethics to be free from sexual harassment, and has sued defendants for breach of contract. This matter is before the court on defendants' motion for summary judgment. For the reasons which follow, defendants' motion will be granted in part and denied in part.

Background

The facts in this case, taken in a light favorable to the plaintiff are as follows: Hilliard Lyons is a wholly-owned subsidiary of PNC. Hilliard Lyons hired plaintiff Shell as a financial consultant on October 5, 2001. At the time Shell joined Hilliard Lyons, the Knoxville office occupied portions of two office buildings. Most of the brokers and staff were located in one building, with just a few located in the other. The building with the larger number of employees also housed the office kitchen. The building with the smaller group of employees was referred to as the "Annex." Throughout his employment, Shell worked out of the Annex in an office beside Stan Shelton.

Shelton was a long-time Hilliard Lyons broker who had formerly been one of the top producing brokers in the Knoxville area, but had seen his production decline after 2000. By the time Shell arrived at Hilliard Lyons, Shelton was an average producer. Shelton exercised no supervisory authority over Shell. Shortly after beginning his employment with defendants, Shelton began sending sexually explicit and suggestive e-mails and documents involving Shell and other male employees of Hilliard Lyons. At times, Shelton posted some of the documents on the office refrigerator, placed a copy in co-workers' mailboxes, put them on co-workers' desks, or sent them around by e-mail.

Shell complained to his supervisor, David McDonald, on four or five occasions that McDonald needed to "calm Shelton down" and that, "it's going too far." Following the conversation, McDonald warned Shelton to leave Shell alone, but did not otherwise reprimand Shelton. Shelton's conduct continued despite Shell's complaints.

On one occasion, Shell states that he walked past Shelton's office door while McDonald was sitting on Shelton's couch. Shelton said "Look at that bootie." Shell then said to McDonald, "That's what I'm talking about," and walked away without further comment. Another time toward the end of 2002, when Shell was again walking past Shelton's office, Shelton commented that, "You look good in that car," referring to a new car that Shell had recently bought. Shell stated that Shelton made the statement in a flirtatious tone of voice, as he would say it to a female.

Shell stated that after Brian Donaldson became branch manager in January 2003, Shelton's conduct escalated. Not only did Shelton send his lewd materials via the company computer and intranet, he often posted sexually related materials in the office kitchen on the refrigerator for all employees and customers to see. Additionally, Shelton's conduct directly toward Shell increased in both frequency and severity. Shell reported to Donaldson a parody of the PNC Code of Ethics that Shelton had drafted and distributed around the Knoxville office commenting on the relationship between Shell and his girlfriend. Also, during this meeting, Shell related an incident that had occurred in February 2003 in which Shelton had ordered a brochure for cruises geared toward homosexuals to be sent to the Knoxville office under Shell's name. Upon receiving the brochure, Shelton took it to Donaldson's administrative assistant, Rebecca Lynch, and prompted her to write a note to Shell stating that Donaldson wanted to have material such as this sent to Shell's home. When he received the brochure with the fake note, Shell became upset because he thought his supervisor would think he was homosexual.

Shell testified concerning a second incident involving the travel brochure. Shelton had pasted a picture of Shell's head onto two of the individuals portrayed on the cover of the travel brochure. Shelton made copies of the altered cover page and inserted them into promotional materials that were distributed at a lunch meeting attended by several brokers.

After his meeting with Shell, Donaldson met with Shelton and confronted him with Shell's allegations. Donaldson told Shelton that he viewed his conduct with Shell "as wrong, inappropriate for the work place, and it had to stop and it had to stop immediately," but did not otherwise reprimand him.

After April 2003, Shell worked from home more often due to Shelton's continuous harassment. Shell resigned his employment with Hilliard Lyons on August 15, 2003. Shell filed the instant action on May 12, 2005, alleging a hostile work environment in violation of Title VII and the Tennessee Human Rights Act, and alleging breach of contract against Hilliard Lyons.

Defendants have moved the court for summary judgment stating that there is no genuine issue as to any material fact and summary judgment is appropriate as a matter of law on all counts of plaintiff's complaint.

Analysis

Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment will be granted by the court only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists. The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Morris to Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1987); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). Once the moving party presents evidence sufficient to support a motion under Rule 56, Federal Rules of Civil Procedure, the non-moving party is not entitled to a trial simply on the basis of allegations. The non-moving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); ...


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