Full opinion text
ORDER DUFFEY, District Judge. This matter is before the Court on the Report and Recommendation issued by Magistrate Judge Hagy [75]. Because no objections to the Report and Recommendation have been filed, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). After careful review, the Court finds no plain error in the Magistrate Judge’s factual or legal conclusions. Accordingly, IT IS HEREBY ORDERED that the Court ADOPTS AS ITS ORDER the Magistrate Judge’s Report and Recommendation. Defendants’ Motion for Partial Summary Judgment [50] is GRANTED IN PART and DENIED IN PART. Defendants’ motion is GRANTED as to (i) all Title VII claims against Dr. Akstein; (ii) Title VII claims for constructive discharge sexual harassment, constructive discharge gender discrimination and gender discrimination against Defendant Akstein Eye Center, P.C.; and (iii) state-law claims for intentional infliction of emotional distress and failure to maintain a safe working environment against both Defendants. Defendants’ motion is DENIED with respect to Plaintiffs claim for hostile work environment against Defendant Akstein Eye Center, P.C. Accordingly, Counts I, II, IV, V and VI of Plaintiffs Complaint are DISMISSED as to both Defendants and Count III is DISMISSED as to Defendant Ricardo B. Akstein only. SO ORDERED. REPORT AND RECOMMENDATION IN AN EMPLOYMENT DISCRIMINATION ACTION HAGY, United States Magistrate Judge. Plaintiff filed the above-styled civil action on April 13, 2004. She claims that Defendant discriminated against her on the basis of her sex and subjected her to sexual harassment, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq. She also asserts state law claims of: (a) intentional infliction of emotional distress; (b) failure to maintain a workplace free from unwanted misconduct, sexual harassment, and gender discrimination (hereinafter, “failure to maintain a safe working environment” or “unsafe workplace”), and (c) battery. The action is presently before the Court on Defendants’ Motion for Partial Summary Judgment [50] (“Motion for Summary Judgment”) and on Defendants’ Motion to Strike Portions of Plaintiffs Initial Disclosures and to Exclude Witnesses [53] (“Motion to Strike”). In their Motion for Summary Judgment, Defendants seek summary judgment on Plaintiffs Title VII claims (Counts I-IV of her Complaint) and on Plaintiffs state law claims for intentional infliction of emotional distress and failure to maintain a safe working environment (Counts V and VI of her Complaint), as well as on Plaintiffs request for punitive damages under Title VII. For the reasons discussed below, the undersigned RECOMMENDS that Defendants’ Motion for Summary Judgment [50] be GRANTED IN PART AND DENIED IN PART. The Court RECOMMENDS that Counts I, II, IV, V, and VI be DISMISSED as to both Defendants, and that Count III be DISMISSED as to Defendant Ricardo Akstein, M.D. but that it proceed as to Defendant Akstein Eye Center, P.C. In addition, it is ORDERED that Defendants’ Motion to Strike [53] be DENIED WITHOUT PREJUDICE. I. SUMMARY OF DECISION AND RECOMMENDATION Defendants seek summary judgment on Plaintiffs Title VII claims (Counts I-IV), including her request for punitive damages under those claims, as well as on her state law claims for intentional infliction of emotional distress (Count V) and for a failure to maintain a safe working environment (Count VI). The Court finds that Defendant Ricardo Akstein, M.D. (“Dr. Akstein” or “Akstein”), as an individual, cannot be held liable under Title VII, and that Plaintiffs Title VII claims (Counts I-IV) can be stated against only her employer, Akstein Eye Center, P.C. (the “Eye Center”). Accordingly, the Court RECOMMENDS that Defendants’ Motion for Summary Judgment be GRANTED on that ground and that all Title VII claims against Dr. Akstein be DISMISSED. As for the claims against the Eye Center, the Court finds that a fact question exists as to whether the alleged sexual harassment perpetrated by Dr. Akstein against Plaintiff was severe or pervasive enough to have altered the terms and conditions of her employment at the Eye Center. Furthermore, regardless of whether Plaintiff availed herself of the procedures in place to report sexual harassment, the Court finds that the Eye Center can be held vicariously liable for the actions of its principal and alter ego, Dr. Akstein. Accordingly, the Court finds that Plaintiffs sexually hostile claim (Count III) may stand, and RECOMMENDS that Defendants’ Motion for Summary Judgment on this claim be DENIED and that this claim remain as to Defendant the Eye Center. Notwithstanding this conclusion, the Court finds that Plaintiff has not presented a genuine issue of material fact in support of her claim that she was constructively discharged, and therefore, her constructive discharge (“tangible employment action”) sexual harassment claim (Count I) fails. For this reason, and because she has failed to point to similarly situated male employees treated more favorably than she was, her constructive discharge gender discrimination claim (Count II) also fails. Finally, Plaintiffs remaining Title VII claim, which she alleges is based on “gender discrimination without tangible employment action” (Count IV), fails for these reasons as well as because it is not a recognized cause of action. Accordingly, the Court RECOMMENDS that Defendants’ Motion for Summary Judgment on Counts I, II, and IV be GRANTED, and that these claims be DISMISSED against both Defendants. As to that portion of Defendants’ Motion for Summary Judgment seeking a ruling on Plaintiffs request for punitive damages under Title VII, the Court finds that, because her sexually hostile work environment claim stands, and because of fact issues as to intent, the Court should not determine whether punitive damages are warranted at this time. Finally, Defendants have moved for summary judgment on Plaintiffs intentional infliction of emotional distress claim (Count V) and on her unsafe workplace claim (Count VI) under Georgia law. The Court finds that the actions as alleged against Defendants are not sufficiently outrageous to satisfy the standards of intentional infliction of emotional distress under Georgia law, and therefore, that this claim fails. In addition, the Court finds that Plaintiff cannot state a claim for an unsafe workplace for allegations amounting to emotional distress, and therefore, that this claim fails as well. Accordingly, the Court RECOMMENDS that Counts V and VI of Plaintiffs Complaint be DISMISSED against both Defendants. II. STATEMENT OF THE FACTS A. PRELIMINARY MATTERS Plaintiff has filed a response to Defendants’ “Statement of Material Undisputed Facts” (“SMF”), attached to her Response to Defendants’ Motion for Summary Judgment [69], in which she denies SMF ¶¶ 8, 11-13, 15-16, 23, 25, 32, 35, 49-52. In that response, however, Plaintiff has not cited to any evidence in the record controverting Defendants’ material facts. According to Local Rule 56.1.B.(2)(a)(2), “[t]his Court will deem each of the movant’s facts as admitted unless the respondent: (i) directly refutes the movant’s facts with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant’s fact; or (iii) points out that the movant’s fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1B.(1).” LR 56.1B.(2)(a)(2), ND Ga. Because Plaintiff has failed to observe the Local Rules by failing properly controvert any of Defendants’ facts in her Response to Defendants’ SMF, the Court must deem the material facts submitted by Defendants to be admitted by Plaintiff. See Denney v. City of Albany, 247 F.3d 1172 (11th Cir.2001) (citing Jones v. Gerwens, 874 F.2d 1534, 1537, n. 3 (11th Cir.1989)). While Plaintiff has included a discussion of the facts in her Brief, which apparently is intended to dispute portions of Defendants’ SMF (See Plaintiffs Memorandum in Support of her Response to Defendants’ Motion for Summary Judgment (“Pl.’s Br.”) at 3-9), that discussion is not adequate. Local Rule 56.1B.(2)(a)(l) states specifically that a “response [to a movant’s SMF] shall contain individually numbered, concise, non-argumentative responses corresponding to each of the movant’s numbered undisputed material facts.” LR 56.1B.(2)(a)(l), ND Ga. Further, this response must be in a separate document filed “with the responsive brief.” LR 56.1B.(2), ND Ga (emphasis added). Plaintiff also has filed a “Statement of Material Facts as to Which There is a Genuine Issue to Be Tried” [69] (“PSMF”). And, although Defendants failed to respond to this statement as required under Local Rule 56.1B.(2)(c), many of these facts are not material, are not in actual dispute, or are based on hearsay or other inadmissible evidence. Others are simply legal conclusions, which are inappropriate under this Court’s Local Rules. See LR 56.1B.(1) (“The court will not consider any fact ... (c) stated as an issue or legal conclusion.”); LR 56.1B.(2) (stating that the statement of disputed material facts must meet the criteria set forth in LR 56.1B.(1)). Still others make no sense, or are not supported by the designated citations. See LR 56.1B.(1) (“The court will not consider any fact: (a) not supported by a citation to evidence (including page or paragraph number”)). In addition, to the extent that Plaintiff contends her discussion of the Facts in her Brief may serve as a statement of material disputed facts, the Court notes that such statements “set out only in the brief’ are not to be considered. LR 56.1B.(1); LR 56.1B.(2)(b). Even if the Court were to construe Plaintiffs discussion of the facts in her Brief or her PSMF as responses to Defendants’ material facts or as statements of disputed facts, Plaintiff has still failed in both documents to respond to many of Defendants’ material facts, and it is difficult for the Court to discern from them which facts Plaintiff controverts, and as a result, which facts are in genuine dispute. Based on the repeated indicia that Plaintiffs PSMF and her statement of facts in her Brief are in violation of this Court’s Local Rules, are unreliable, and do not controvert Defendants’ SMF, the Court is inclined to give them no weight in making its recommendation. Nevertheless, the Court must view all facts in the light most favorable to Plaintiff, and so, where necessary, the Court has supplemented its discussion of the facts with citations to the record, including those citations identified in Plaintiffs unopposed PSMF. Matsushita Elec. Indus., Inc. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir.1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir.1993). Furthermore, because Defendants have accepted as true most of Plaintiffs allegations regarding the alleged sexual harassment, see SMF FN 1, most of the facts in relation to Dr. Akstein’s conduct are not in dispute. And, as discussed in detail infra, the Court has found that the Eye Center can be held vicariously liable for the actions of its principal and alter ego, Dr. Akstein. See Discussion infra at 42-48. Thus, any disputes as to whether the Eye Center had a sexual harassment policy in place or as to whether Plaintiff followed that policy are immaterial. B. BACKGROUND FACTS Defendant, the Eye Center, is an ophthalmology practice in which Defendant Dr. Akstein engages in the ophthalmic care of his patients. SMF ¶ 1; Deposition of Ricardo Akstein, M.D. (“Akstein Dep.”) [64] at 31-32. Plaintiff began her employment with the Eye Center on November 18, 2002, and she worked there until she resigned on March 12 or March 13, 2003. SMF ¶ 2; Deposition of Brandy Martinez Smith (“Smith Dep.”), attached as Ex. 2 to Defendants’ Motion for Summary Judgment, [Docket Entry 71 in Kimsey v. Akstein, et al., 1:04-CV-1001-WSD-CCH] at 74, 117. The only male employees at the Eye Center were Dr. Akstein, another male doctor (Dr. Shatz), and the maintenance man. SMF ¶ 53; Smith Dep. at 240. Plaintiffs initial position with the Eye Center was as a front desk assistant. SMF ¶ 3; Smith Dep. at 99. To obtain the position, she interviewed with Linda Bunch, the Office Manager. SMF ¶ 4; Smith Dep. at 97-98. As a front desk assistant, Plaintiff checked patients out, retrieved their charts, made sure their personal information was correct, and instructed them to wait for an examination room. SMF ¶ 5; Smith Dep. at 99. Bunch was Plaintiffs direct supervisor. SMF ¶ 6; Smith Dep. at 74. While she worked for the Eye Center, Plaintiff also worked as a Hooters girl at Hooters restaurant and bar, and as a massage therapist at a chiropractic office, where she would perform massages on some weekends. SMF ¶ 7; Smith Dep. at 54-55, 69-71. At all relevant times, the Eye Center has maintained an employee handbook that contains an anti-discrimination policy and anti-harassment policy. SMF ¶ 8; Smith Dep. at 182-83; Deposition of Linda Bunch [65] (“Bunch Dep.”) at 125; Deposition of Liz Adams [66] (“Adams Dep.”) at 85-86. The anti-harassment policy in the employee handbook states: The practice is committed to providing a work environment free of discrimination. This policy prohibits harassment in any form, including verbal, physical and sexual harassment. Any employee who believes he or she has been harassed by a coworker, manager or agent of the practice is to immediately report any such incident to the Administrator or next higher authority. We will investigate and take appropriate action. SMF ¶ 13. Akstein Dep. at 269; Pl.’s Ex. 1 to Akstein Dep. Plaintiff admits that, “it was in our employee handbook that if there was anything that we felt needed to be brought to attention, we should bring it to Linda Bunch’s attention.” SMF ¶ 9; Smith Dep. at 182. Plaintiff also admitted in her deposition that her allegation in her Complaint that there were no corrective measures for harassment issues was inaccurate. SMF ¶ 10; Smith Dep. at 249-50; Compl. ¶ 23. During all times relevant to the Complaint, the Eye Center also displayed a poster on sexual harassment in the office. SMF ¶ 11; Akstein Dep. at 267; Defs.’ Ex. 1 to Akstein Dep. This poster states: Because of the importance we place on these types of issues, this company has instituted a procedure for investigating harassment complaints. It is our policy to investigate and resolve these issues in a prompt manner. If you have been harassed, or another’s conduct creates an intimidating, hostile, or offensive work environment, please notify one of the people listed below immediately. SMF ¶ 12; Akstein Dep. at 268; Defs.’ Ex. 1 to Akstein Dep. Plaintiff signed a statement on November 20, 2002, right after she began her employment with the Eye Center, acknowledging receipt and review of the office manual. SMF ¶ 14; Smith Dep. at 274. Plaintiff admits that one of the policies in the manual that she reviewed was the requirement that she report any-alleged harassment to Bunch. SMF ¶ 15 (Smith Dep. at 274-75). Plaintiff also attended and signed an attendance roster at an employee meeting in January of 2003, in which the anti-harassment policy was discussed, Bunch answered questions about harassment, and Bunch reiterated that employees could come to her at any time to report harassment. SMF ¶ 16; Bunch Dep. at 125,128. Plaintiff alleges that, despite the company’s harassment policy, she was subjected to several instances of inappropriate sexual conduct by Dr. Akstein. The facts surrounding Dr. Akstein’s conduct toward Plaintiff are in some dispute, although, as discussed supra, Defendants have assumed that much of what Plaintiff has alleged is true for purposes of their Motion for Summary Judgment. See Discussion supra at 10. It is generally undisputed that Dr. Akstein constantly told Plaintiff how beautiful she was; that Dr. Akstein told Plaintiff he wished he could take her away for a weekend to wine and dine her; that Dr. Akstein asked Plaintiff why she was planning to marry a man who could not provide for her the way he could; that when Dr. Akstein would walk patients to the front desk, he would give Plaintiff a “weird” smile or wave at her to get her attention; that at least six times during the course of her employment with the Eye Center, Dr. Akstein touched Plaintiffs hair and face, telling her she had beautiful skin and good Hispanic qualities; that approximately two or three times during her employment with the Eye Center, Dr. Akstein rubbed Plaintiffs back; that Dr. Akstein told Plaintiff, “[sjometimes when I see you in the hall, I just wish I could kiss you,” and that Dr. Akstein told Plaintiff, “[wjhen I see you at the desk, and your shirt comes up so I can see your skin, it makes me want to come back.” SMF ¶¶ 17-24, 26; Smith Dep. at 152-54, 160, 183, 215-16, 328. See also PSMF ¶¶ 14 (citing Smith Dep. at 152); PSMF ¶ 15 (citing Smith Dep. at 158); PSMF ¶ 16 (citing Smith Dep. at 169); PSMF ¶ 21 (citing Smith Dep. .at 187); PSMF ¶23 (citing Smith Dep. at 213-14). In her PSMF, Plaintiff also alleges that Dr. Akstein gave her his phone number and asked her to call him repeatedly. PSMF ¶ 18 (citing Smith Dep. at 175). Plaintiff admits that she did not report any of this general behavior to Bunch. SMF ¶27; Smith Dep. at 183. In addition, in January of 2003, Plaintiff went into the file room near the insurance department to get some files, when Dr. Akstein approached her, touched her sweater inappropriately, and stroked her hair. SMF ¶ 28; Smith Dep. at 164. Plaintiff did not report this incident to Bunch. SMF ¶29; Smith Dep. at 183. On another occasion, Dr. Akstein came in to Hooters for lunch during Plaintiffs shift and gave her a $100 tip, and when Plaintiff said to him, “[tjhis is a lot of money,” he replied, “[i]t’s okay, you deserve it.” SMF ¶¶ 30-31; Smith Dep. at 315-20. Dr. Akstein placed no contingency on the $100 tip he gave her, and Plaintiff did not report this incident to anyone at the Eye Center. SMF ¶ 32; Smith Dep. at 183, 320. Finally, on or about March 10, 2003, Plaintiff asked Dr. Akstein why she had not yet received a raise, and he invited her to lunch to talk about it. SMF ¶ 33; Smith Dep. at 167, 180. Plaintiff suggested that they go to Hooters for lunch (the location where she worked). SMF ¶ 34; Smith Dep. at 168. While Dr. Akstein did not touch Plaintiff at all during lunch, he did ask her if she was still getting married and stated to her that he wished he could wine and dine her. SMF ¶¶ 35-36; Smith Dep. at 168-69, 180. Also during lunch, Dr. Akstein asked Plaintiff if she ever gave, or if she had thought of giving, “sexual” massages. SMF ¶ 37; Smith Dep. at 180. He told her, “I’m a Latin man, and this is the way Latin men act.” SMF ¶ 38; Smith Dep. at 180. Plaintiff returned to work after lunch and worked the remainder of the day. SMF ¶ 39; Smith Dep. at 181-82. When Bunch mentioned Plaintiffs lunchtime absence to her, Plaintiff responded, “[w]ell, I was at lunch with Dr. Akstein discussing a raise.” SMF ¶ 40; Smith Dep. at 182. She did not, however, tell Bunch about any of Dr. Akstein’s allegedly inappropriate statements because she did not feel that Bunch was “on [her] side,” even though she knew that the Eye Center’s employee handbook required her to report such behavior to Bunch. SMF ¶¶ 41-42; Smith Dep. at 182, 217. On March 6, 2003, Plaintiff arrived late to work at one of the Eye Center’s offices, which resulted in patients having to wait outside of the office. SMF ¶ 43; Smith Dep. at 110-12. Bunch counseled Plaintiff following this occasion. SMF ¶ 44 (Smith Dep. at 112-13). On March 11, 2003, Plaintiff was given a written warning for calling in absent to work without giving a reason. SMF ¶ 45 (Smith Dep. at 116). Plaintiff alleges that her absence occurred because she was sick, and she does not recall receiving a written warning. SMF ¶ 46; Smith Dep. at 116-17. On March 12, 2003, Plaintiff went to the Eye Center, drafted a resignation letter, handed it to Bunch, and left. SMF ¶ 47; Smith Dep. at 118-20. The letter stated: To whom it may concern: This is my letter of resignation. I feel that I’ve been treated improperly, and Dr. Akstein has said things to me in sexual orientation that have made me feel very uncomfortable, so therefore I feel I need to take myself out of this situation. Thanks, Brandy Martinez. SMF ¶ 48; Smith Dep. at 118; Akstein Dep. at 135. Plaintiff stated in her deposition that she resigned because she could not “believe someone would speak to [her]” the way Dr. Akstein did at lunch on March 10, 2003. SMF ¶ 49; Smith Dep. at 225. Plaintiffs resignation letter, however, made no mention of any inappropriate touching by Dr. Akstein. SMF ¶ 50; Smith Dep. at 118. According to Plaintiffs deposition, she suffered stress and physical symptoms from that stress as a result of the alleged harassment she endured while at the Eye Center, but it was not severe enough to warrant going to a doctor. SMF ¶ 51; Smith Dep. at 273. Furthermore, Plaintiff never saw a psychologist, psychiatrist, or other form of counselor based on the alleged stress she suffered. SMF ¶ 52; Smith Dep. at 260-61. On July 29, 2003, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging sexual harassment. SMF ¶ 55; Smith Dep. at 194; Akstein Dep. at 128; Pl.’s Ex. 4 to Akstein Dep. It is undisputed that Plaintiff received a right to sue notice from the EEOC in response to her EEOC charge, and that she timely filed this action within ninety (90) days thereafter. Because many of the Court’s findings of fact are intertwined with its analysis of whether the parties have met their respective evidentiary burdens, the remaining relevant facts are set forth in the Discussion below. III. DISCUSSION A. EVIDENTIARY ISSUES In their Motion to Strike [53], Defendants seek to strike certain supplementary portions of Plaintiffs Initial Disclosures, and to strike affidavits and testimony of several witnesses disclosed in the most recent supplement thereto. According to Defendants, Plaintiffs Initial Disclosures (Ex. 1 to Motion to Strike) purported to reveal all documents and data in her custody and control that may have been used to support her claims. See Memorandum in Support of Motion to Strike at 2. On March 18, 2005, however, over one month after discovery ended on February 10, 2005 (See Order Granting Discovery Extension in Part [34]), Plaintiff supplemented her Initial Disclosures to include eleven additional witnesses not included in her initial filing. See Exs. A and C to Revised Initial Disclosures Motion to Strike (Ex. 2 to Motion to Strike); Defendants’ Memorandum in Support of Motion to Strike at 2-3. Plaintiff also included the declarations of nine of those witnesses. Defendants seek to exclude ten of the witnesses from testifying and to strike all related affidavits. The Court already has found that Defendants’ entire SMF is deemed admitted by Plaintiff because she has failed to respond adequately to each fact. See Preliminary Matters supra at 6-10. With respect to the use of these affidavits in Plaintiffs Brief, the Court notes that Plaintiff has filed to cite to the affidavits in her argument section and, as discussed supra, the Court will not consider Plaintiffs Statement of Facts in the preliminary section of her Brief. Furthermore, and pertaining to the use of these materials in Plaintiffs PSMF, the Court concludes that most, if not all, of the testimony to which Defendants have objected is immaterial either to Plaintiffs claims or to Defendants’ defenses, and therefore, the Court declines to discuss Defendants’ objections. See Preliminary Matters supra at 6-10. Accordingly, Defendants’ Motion to Strike is DENIED WITHOUT PREJUDICE. The Motion may be refiled at a later time if this case proceeds to trial. Defendants are advised, however, that they now have notice of these potential witnesses and this case is months from trial. Accordingly, while discovery is closed, if Plaintiff is willing to make these witnesses available for deposition or does not oppose a subpoena seeking their testimony, a court might allow them to be listed in the PreTrial Order and to be called at trial. B. SUMMARY JUDGMENT STANDARD Summary judgment is authorized when all “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 a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 175, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir.1984). The movant carries this burden by showing the court that there is “an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In making its determination, the court must view the evidence and all factual inferences in the light most favorable to the nonmoving party. Once the moving party has adequately supported its motion, the nonmoving party must come forward with specific facts that demonstrate the existence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party is required “to go beyond the pleadings” and to present competent evidence designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Generally, “[t]he mere existence of a scintilla of evidence” supporting the non-moving party’s case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering motions for summary judgment, the court does not make decisions as to the merits of disputed factual issues. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Ryder Int’l Corp. v. First American Nat’l Bank, 943 F.2d 1521, 1523 (11th Cir.1991). Rather, the court only determines whether there are genuine issues of material fact to be tried. Applicable substantive law identifies those facts that are material and those that are irrelevant. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Disputed facts that do not resolve or affect the outcome of a suit will not properly preclude the entry of summary judgment. Id. If a fact is found to be material, the court must also consider the genuineness of the alleged factual dispute. Id. An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is “merely colorable” or is “not significantly probative.” Id. at 250, 106 S.Ct. 2505. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 242, 106 S.Ct. 2505. Moreover, for factual issues to be genuine, they must have a real basis in the record. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586, 106 S.Ct. 1348. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Id. at 587, 106 S.Ct. 1348 (quoting First Nat’l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). Thus, the standard for summary judgment mirrors that for a directed verdict: “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 259, 106 S.Ct. 2505. C. STANDARDS OF PROOF IN TITLE VII CLAIMS Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). To prevail on a Title VII claim, a plaintiff must prove that the defendant acted with discriminatory intent. Hawkins v. Ceco Corp., 883 F.2d 977, 980-981 (11th Cir.1989); Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 529 (11th Cir.1983). Such discriminatory intent may be established either by direct evidence or by circumstantial evidence meeting the four-pronged test set out for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir.1997); Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir.1984). Evidence that merely “suggests discrimination, leaving the trier of fact to infer discrimination based on the evidence” is, by definition, circumstantial. Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081-82 (11th Cir.1990). When relying on circumstantial evidence, a plaintiff is first required to create an inference of discriminatory intent, and thus carries the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see also Jones v. Bessemer Carraway Medical Ctr., 137 F.3d 1306, 1310, reh’g denied and opinion superseded in part, 151 F.3d 1321 (11th Cir.1998); Combs, 106 F.3d at 1527. Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination. Jones, 137 F.3d at 1310-1311; Holifield, 115 F.3d at 1562 (citations omitted); see Burdine, 450 U.S. at 253-54, 101 S.Ct. 1089. Once the plaintiff establishes a prima facie case, the defendant must “articulate some legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Jones, 137 F.3d at 1310. This burden is “exceedingly light” in comparison to the burden required if the plaintiff has presented direct evidence of discrimination. Smith v. Horner, 839 F.2d 1530, 1537 (11th Cir.1988). If the defendant is able to carry this burden and explain its rationale, the plaintiff, in order to prevail, must then show that the proffered reason is merely a pretext for discrimination. See Burdine, 450 U.S. at 253-54, 101 S.Ct. 1089; Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir.1983). A plaintiff is entitled to survive a defendant’s motion for summary judgment if there is sufficient evidence to demonstrate the existence of a genuine issue of material fact regarding the truth of the employer’s proffered reasons for its actions. Combs, 106 F.3d at 1529. A prima facie case along with sufficient evidence to reject the employer’s explanation is all that is needed to permit a finding of intentional discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993); Combs, 106 F.3d at 1529. This McDonnell Douglas-Burdine proof structure “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); see also Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir.1987). The Eleventh Circuit has held that this framework of shifting burdens of proof is a valuable tool for analyzing evidence in cases involving alleged disparate treatment, but the framework is only a tool. Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir.1984). The “ultimate question” is not whether a plaintiff has established a prima facie case or demonstrated pretext, but “whether the defendant intentionally discriminated against the plaintiff.” Id., 738 F.2d at 1184 (quoting Aikens, 460 U.S. at 713-14, 103 S.Ct. 1478); see also Jones, 137 F.3d at 1313. The plaintiff retains the ultimate burden of proving that the defendant is guilty of intentional discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. D. PLAINTIFF’S TITLE VII CLAIMS 1. Dr. Akstein’s Liability Plaintiff has asserted claims under Title VII against both Defendant Akstein and the Eye Center, without specifying which Defendants she alleges are liable on which Counts. The Eleventh Circuit has held that “[t]he relief granted under Title VII is against the employer, not the individual employees whose actions would constitute a violation of the Act.” Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991); accord Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996); Cross v. State of Alabama, 49 F.3d 1490, 1504 (11th Cir.1995). Therefore, Plaintiff may only assert a valid claim under Title VII against-her actual employer, which, on the basis of the Complaint, appears to have been at all relevant times Defendant the Eye Center, not Defendant Dr. Akstein in his individual capacity. The Court finds, therefore, that Plaintiffs Title VII claims against Defendant Dr. Akstein in his individual capacity should be dismissed. Accordingly, the Court RECOMMENDS that Defendants’ Motion for Summary Judgment, insofar as it is based on Defendant Dr. Akstein’s liability under Title VII, be GRANTED, and that Counts I through IV of Plaintiffs Complaint be DISMISSED as to Defendant Ricardo Akstein, M.D. 2. Plaintiffs Sexual Harassment Claims Against the Eye Center: Counts I and III In Counts I and III of her Complaint, Plaintiff alleges that she was sexually harassed by Dr. Akstein. See Compl. Counts I, III. A plaintiff may establish a violation of Title VII by proving that she was harassed on the basis of her sex and that such harassment affected a condition of her employment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Henson v. City of Dundee, 682 F.2d 897, 902-904 (11th Cir.1982). As the United States Supreme Court has stated: [T]he language of Title VII is not limited to “economic” or “tangible” discrimination. The phrase “terms, conditions, or privileges of employment” evinces a congressional intent to “ ‘strike at the entire spectrum of disparate treatment of men and women’ ” in employment. Meritor Savings Bank, 477 U.S. at 64, 106 S.Ct. 2399 (citations omitted). Thus, Title VII grants employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. Id. at 65, 106 S.Ct. 2399. Sexual harassment may violate Title VII when the harassment: (1) involves the conditioning of concrete employment benefits on sexual favors (ie., what has been traditionally called quid pro quo sexual harassment), or (2) creates a hostile or offensive working environment, even if not affecting economic benefits. See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Meritor Savings Bank v. Vinson, 477 U.S. at 62, 106 S.Ct. 2399. In this case, Plaintiff claims that Dr. Akstein sexually harassed her; specifically, both that an adverse employment action was taken against her for failure to succumb to his sexual advances (ie. quid pro quo harassment — Count I of her Complaint), and that Dr. Akstein created a hostile work environment as a result of his harassment (Count III of her Complaint). Compl. Counts I, III. Although the terms “quid pro quo” and “hostile environment” continue to be used in some instances, their usefulness is diminishing since the Supreme Court’s decisions in Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). In these rulings, the Supreme Court erased the former distinction that the employer was vicariously liable for all quid pro quo harassment by its managers, while employer liability in a hostile environment claim required proof of actual or constructive knowledge. Rather, the Court held, the meaningful distinction was whether the harassment culminated in a tangible employment action by a supervisor. If so, the employer would be vicariously liable. If there was no tangible employment action but the harasser was a supervisor, the employer still could be held liable, but would have the opportunity to raise an affirmative defense by showing that: (a) the employer exercised reasonable care to prevent the harassment and took prompt corrective action once the harassment was reported, and (b) the employee unreasonably failed to take advantage of these safeguards. Burlington, 524 U.S. at 765, 118 S.Ct. 2257. Plaintiff does not allege that she was terminated or disciplined in any way, or that she was subjected to any pecuniary adverse action, but instead alleges that the adverse employment action taken against her was a constructive discharge, which itself is based on the allegedly harassing behavior of Dr. Akstein. As a result, the distinction between quid pro quo harassment and hostile work environment harassment is even further diminished in Plaintiffs case. In order to establish a prima facie case for a Title VII claim against an employer for a hostile work environment based on sexual harassment, a plaintiff must show that: (1) she belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment, and (5) there is a basis for holding the employer liable for the harassment either directly or indirectly. Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir.1982); see also Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir.1995); Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir.1988); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557 (11th Cir.1987). The Eye Center does not dispute that Plaintiff has presented sufficient evidence to establish the first three elements of a prima facie claim of sexual harassment, whether in the context of a quid pro quo claim or a hostile work environment claim. See Defs.’ Br. at 14. Instead, the Eye Center argues that Plaintiff has failed to show either that the incidents about which she complains were severe or pervasive enough to alter a term or condition of her employment, or that, even if the alleged harassment could be considered severe or pervasive, Defendant the Eye Center, as Plaintiffs employer, cannot be held liable for the actions of Dr. Akstein. In addition, the Eye Center alleges that Plaintiff was not constructively discharged. a. Severe or Pervasive Conduct In order to establish a prima facie case of sexual harassment based on a hostile work environment, Plaintiff must show that her work environment was “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). To determine whether a hostile environment is severe or pervasive enough to be actionable under Title VII, the “totality of the circumstances” must be considered; a court must consider not only the frequency of the incidents alleged but also the gravity of those incidents. Harris, 510 U.S. at 23, 114 S.Ct. 367; Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 (11th Cir.1989). Other factors that are relevant are whether the offensive conduct is physically intimidating or humiliating, and whether it unreasonably interferes with plaintiffs work performance. Harris, 510 U.S. at 23, 114 S.Ct. 367. Plaintiff alleges that Dr. Akstein “constantly” told her how beautiful she was; that he told her that he wished he could take her away for a weekend to wine and dine her; that he asked her why she was planning to marry a man who could not provide for her the way that he could; that when he would walk patients to the front desk, he would give her a “weird” smile or wave at her to get her attention; that approximately six times during the course of her employment with the Eye Center, he touched her hair and face, telling her she had good Hispanic qualities; that approximately two or three times during her employment, he rubbed her back; that he told her, “sometimes I see you in the hall, I wish I could kiss you”; that he told her, “[w]hen I see you at the desk, and your shirt comes up so I can see your skin, it makes me want to come back”; that, in January of 2003, he approached her, touched her sweater, and stroked her hair, and that on another occasion, he came to eat lunch at Hooter’s during her shift and left her a $100 tip, telling her, “[i]t’s okay, you deserve it.” Background Facts supra at 15-16. Plaintiff admits that she did not report these incidents to anyone. Id.; Smith Dep. at 183, 320. In addition to the incidents described above, Plaintiff alleges that, just days before she resigned, on March 10, 2003, when she asked Dr. Akstein why she had not yet received a raise, he invited her to go to lunch to talk about it. SMF ¶ 33; Smith Dep. at 167. Plaintiff suggested that they go to Hooters for lunch. SMF ¶ 34; Smith Dep. at 168. She admits that Dr. Akstein did not touch her at all during lunch, but he did ask her if she was getting married and stated to her that he wished he could wine and dine her. SMF ¶ 36; Smith Dep. at 180. Plaintiff also alleges that, during lunch, Dr. Akstien asked her to give him a “sexual” massage. SMF ¶ 37; Smith Dep. at 220. He told her: “I’m a Latin man, and this is the way Latin men act.” SMF ¶ 38; Smith Dep. at 180. She did not, however, tell Bunch about any allegedly inappropriate statements by Dr. Akstein. SMF ¶ 41; Smith Dep. at 182. As an initial matter, the Court notes that, whether much of this conduct could be sexual in nature is questionable. For example, the “weird” smiles were not necessarily sexual in nature. Nor was the excessive tip at Hooters necessarily sexual, as it was not contingent upon any sexual favors or accompanied by any sexual remarks or advances. See, e.g., Mendoza v. Borden, Inc., 195 F.3d 1238, 1247-48 (11th Cir.1999) (finding comment “I’m getting fired up” to be ambiguous) (citing Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167-68 (7th Cir.1996))(holding offensive comments, including “sick bitch,” which is not necessarily gender-related, inactionable). In addition, there is no evidence that much of the conduct was unwelcome. For instance, Plaintiff accepted the tip at Hooters without complaint, merely commenting that it was a lot of money. See Discussion supra at 34. As for Dr. Akstein’s “constant” remarks to Plaintiff about her beauty, Plaintiff has provided no evidence that she found such remarks.unwelcome. Furthermore, Plaintiff makes no argument in her Brief that she complained about those remarks or the tip to Dr. Akstein. And, while there is evidence that Plaintiff rebuffed certain advances, such as the face rubs, back rubs and inappropriate sweater touches, Smith Dep. at 169, 213-14, 336-37, it appears that several times she did not. Smith Dep. at 152-54, 158-61, 169. Nonetheless, because Defendants have made no argument that any of the alleged conduct was welcome, the Court must assume that each instance of alleged harassing conduct by Dr. Akstein was unwelcome. See Defs.’ Br. at 14. Further, Defendants have not made any argument that the alleged conduct was not based on Plaintiffs sex, and therefore, the Court must assume that even the most ambiguous and seemingly mundane events and remarks, such as Dr. Akstein’s “weird” smiles, were not only unwelcome by Plaintiff, but were based on her gender. Based on these concessions, and viewed in the light most favorable to Plaintiff, the Court finds evidence of several categories of allegedly harassing conduct: two to three occasions where Dr. Akstein told Plaintiff that he wished he could wine and dine her; several occasions where Dr. Akstein told Plaintiff that she had good Hispanic qualities; a statement to Plaintiff that he liked her exposed midrift; Dr. Akstein’s “constantly” telling Plaintiff that she was beautiful; “weird” smiles and waves toward Plaintiff; six occasions where Dr. Akstein touched Plaintiffs face; two to three back rubs; at least one occasion where Plaintiffs sweater was touched inappropriately, and a request for (or about) a “sexual” massage. There is no question that Plaintiff subjectively perceived this conduct as severe or pervasive — at least the final lunch incident — as she resigned explicitly in response to sexually offensive conduct by Dr. Akstein just days after her lunch with Dr. Akstein. See Akstein Dep at 135; Background Facts supra at 18. Applying the standard set forth in Harris, 510 U.S. 17, 114 S.Ct. 367, the Court finds that these allegations set forth a pattern of conduct that a reasonable jury could find to be severe or pervasive enough to have interfered with Plaintiffs ability to do her job. It is true that some of the conduct of which Plaintiff complains, such as Dr. Akstein’s telling her that she is beautiful, would not, by itself, be sufficient to constitute sexual harassment. “A man can compliment a woman’s looks ... on one or several occasions, by telling her that she is looking ‘very beautiful,’ or words to that effect, without fear of being found guilty of sexual harassment for having done so. Words complimenting appearance may state the obvious, or they may be hopelessly hyperbolic. Not uncommonly such words show a flirtatious purpose, but flirtation is not sexual harassment.” Gupta v. Florida Bd. of Regents, 212 F.3d 571, 584 (11th Cir.2000) (citing Oncole v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). And, as discussed above, whether much of the conduct was unwelcome or was sexual in nature is questionable. See Discussion supra at 34-35. These incidents, however, must be viewed in their totality, examining the context in which they occurred. Vance, 863 F.2d at 1515. Defendants contend that this conduct is no more severe or pervasive than that which the Eleventh Circuit found non-actionable in Gupta v. Florida Bd. of Regents, 212 F.3d at 584. In Gupta, the Eleventh Circuit held that several incidents, including excessive gazing; telephone calls to the plaintiffs home; frequent lunch invitations; two or three incidents of over-the-clothes touching, and various inappropriate comments, over a period of six months, were merely “bothersome and uncomfortable ... and would trivialize true instances of sexual harassment.” Gupta, 212 F.3d at 586. The Court found that most of the conduct was benign, and that, while it may have been sexual, was not severe, threatening, or humiliating. In particular, the Court found that two of the incidents of touching in a period of six months, once on the plaintiffs knee and once on the hem of her dress, while inappropriate, were not severe or pervasive enough to constitute sexual harassment, as “[e]ach incident was only momentary, and neither was coupled with any verbal suggestions or advances.” Gupta, 212 F.3d at 585. Similarly, the Eleventh Circuit, in Mendoza v. Borden, found that the following conduct, occurring over eleven months, was not severe or pervasive enough to be actionable: an ambiguous statement by the alleged harasser that he was “getting fired up”; one occasion where the alleged harasser rubbed his hip against the plaintiffs while touching her shoulder and smiling; two instances where the alleged harasser made a sniffing sound while looking at the plaintiffs groin area and one sniff without looking at her groin, and constant following and staring by the alleged harasser. Mendoza, 195 F.3d at 1247. When the instant case is compared to Mendoza and to Gupta, although it is a close call, it becomes apparent that the incidents at issue here elevate the harassment to a level beyond that found in those cases. Unlike the alleged harassment in Gupta, the most severe of which included two instances of over-the-clothes touching in six months, the alleged harassment at issue here consisted of six to nine (or more) instances of touching (including of the face) in less than four months. Additionally, in Mendoza, there was arguably no intentional touching and there were no explicit requests for sexual acts. Here, however, Dr. Akstein gave intentional and unsolicited back and face rubs to Plaintiff several times, and on several occasions stated his desire to kiss her or discussed “sexual” massages. Even if the touching incidents or the explicit sexual remarks in this case were not, by themselves, severe or pervasive enough to alter the terms or conditions of her employment, Plaintiff has alleged a pattern of less severe verbal harassing that, viewed in its entirety and with the touching incidents, and assuming the unwelcome nature of the conduct, is sufficiently pervasive to satisfy the Harris standard. Further, while the Court in Gupta and in Mendoza questioned whether some of the behavior was ambiguous, the Court must assume here, based on Defendants’ concessions, that Dr. Akstein’s conduct was both unwelcome and based on her sex. In particular, the repeated nature of the unwelcome physical contact and inappropriate verbal conduct over such a short period of time elevate the behavior from merely annoying to that which a reasonable juror could conclude was so severe or pervasive as to have altered the terms and conditions of Plaintiffs employment. This case, as Plaintiff argues, is more akin to Johnson v. Booker T. Washington Broadcasting Servs., Inc., 234 F.3d 501 (11th Cir.2000). In that case, the Eleventh Circuit found that fifteen incidents within a four-month period, which included unwanted massages, standing close enough for the harasser’s body parts to touch the plaintiffs, and the harasser’s pulling his pants tight to reveal his body parts, were sufficiently severe or pervasive for a jury to conclude that they fell within the definition of actionable harassment. Finally, there is evidence that the incidents complained of interfered with Plaintiffs ability to do her job. Indeed, after the lunch incident, when Dr. Akstein asked Plaintiff if she would give him a “sexual” massage and made additional inappropriate statements, Plaintiff resigned, stating that she could no longer endure Dr. Aktein’s inappropriate sexual comments. See Background Facts supra at 18. Furthermore, there is evidence that Plaintiff endured several physical symptoms resulting from stress, which she alleges was connected to Dr. Akstein’s conduct. Background Facts supra at 19; Smith Dep. at 230-31. Finally, the evidence shows that, just before Plaintiff left, she suffered from performance problems, which a reasonable juror could conclude were related to the stress she endured in response to Dr. Akstein’s conduct. See Background Facts supra at 17-18. To show interference with one’s employment sufficient to make a prima facie case of a hostile work environment, “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. The employee need only show that the harassment made it more difficult to do the job.” Williams v. General Motors Corp., 187 F.3d 553, 567 (6th Cir.1999) (internal citations and quotations omitted). Plaintiffs allegations that she suffered from stress that affected her emotional state, and the evidence that she suffered from performance problems shortly before her resignation, are sufficient to create a fact question as to whether Dr. Akstein’s harassment made it more difficult for Plaintiff to do her job. See Johnson, 234 F.3d 501 (inability of the plaintiff to get along with her co-worker). Thus, the Court finds that Plaintiff has presented a genuine issue of material fact as to whether Dr. Akstein’s conduct toward her rises to the level of sexual harassment that is severe or pervasive enough to affect a condition of Plaintiffs employment. Accordingly, it is RECOMMENDED that Defendants’ Motion for Summary Judgment, insofar as it is based on Plaintiffs inability to establish conduct that is so severe or pervasive to create a hostile work environment, be DENIED. b. The Eye Center’s Liability In order to establish the final element of a prima facie case of her hostile work environment claim, Plaintiff must present sufficient evidence that the Eye Center should be held liable for the actions of Dr. Akstein. It is undisputed that Dr. Akstein had supervisory authority over all employees. Compl. ¶ 5; Answer [5] ¶ 5; Amended Answer [6] ¶ 5; Akstein Dep. at 38, 47-48,103, 237. When a supervisor’s harassment culminates in a “tangible employment action, such as discharge, demotion, or undesirable reassignment,” liability is automatic. Faragher, 524 U.S. at 807-08, 118 S.Ct. 2275; Ellerth, 524 U.S. at 762-63, 118 S.Ct. 2257. Typically, when there is no tangible employment action, an employer may avoid vicarious liability for the acts of its supervisor by showing that it exercised reasonable care to prevent and correct promptly any sexual harassing behavior, and that the employee being harassed unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, 524 U.S. at 807-09, 118 S.Ct. 2275. In other words, when there is no tangible employment action and the employer’s liability must be based on the harasser’s agency relationship with the employer, there is an affirmative defense which the employer may assert, which requires that the employer prove both that there were adequate procedures in place and that the employee failed to use them. “[Wjhile proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense.” Faragher, 524 U.S. at 807-08, 118 S.Ct. 2275. Because Plaintiff has failed to controvert Defendants’ SMP, and based on her own deposition, she has admitted both that the Eye Center had a sexual harassment policy in place, and that she unreasonably failed to take advantage of its complaint procedures and otherwise to mitigate the harm against her. See Preliminary Matters and Background Facts supra at 6-19; Smith Dep. at 180-81, 188. As a result, under these facts, the Eye Center could utilize the Faragher affirmative defense to establish that it was not liable under an agency relationship theory for the actions of Dr. Akstein. Dr. Akstein, however, was not just a supervisor; he was the President and CEO of the Eye Center. Compl. ¶ 5; Answer [5] ¶ 5; Amended Answer [6] ¶ 5; Akstein Dep. at 38, 47-48, 103, 237. The Court finds that, based on the reasoning in Faragher and substantive interpretive case law, Dr. Akstein’s conduct, within his role as President and CEO of the business carrying his name, could be attributed to the company, and that his knowledge of his own behavior could be directly imputed to the organization, so that the Eye Center is not entitled to the Faragher/Ellerth affirmative defense. In Faragher, the Supreme Court extensively discussed preexisting case law related to this issue, citing with approval its earlier decision in Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), where it was not an issue whether a corporation could be vicariously liable for the harassment of its President, because that individual “was indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy.” Faragher, 524 U.S. at 789, 118 S.Ct. 2275 (citing Harris, 510 U.S. at 19, 114 S.Ct. 367). The Court also cited another previous decision, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). See Faragher, 524 U.S. at 791, 118 S.Ct. 2275. While the Court declined to issue a definitive rule on employer liability in Meritor, the Court stated that Congress intended for courts to be guided by agency principles in determining employer liability issues. Meritor, 477 U.S. at 72, 106 S.Ct. 2399. The Eleventh Circuit, although it has not issued a ruling on this issue, has intimated its interpretation of Faragher and Ellerth to extend automatic liability to corporations for sexual harassment by its proxies or alter egos. In Dees v. Johnson Controls World Servs., Inc., it discussed the various means of vicarious liability under Faragher and Ellerth, to include instances when a supervisor: violates a “non-delegable duty” of the employer; uses “apparent authority” granted by the employer; was aided in committing the harassment by the existence of his agency relationship with the employer, or “holds such a high position in the company” that he could be considered the company’s “alter ego.” Dees, 168 F.3d 417, 422-23 (11th Cir.1999) (internal quotations and citations omitted). Although the harasser in Dees was not alleged to be an alter ego or a proxy of the company, and therefore, the issue of alter ego liability was not at issue before that Court, the Eleventh Circuit in Dees did not articulate any disagreement with the result in Harris, with or the Supreme Court’s discussion of alter ego liability in Faragher. Further, this Court is aware of no authority in this Circuit or elsewhere holding that an individual who is indisputably within such a position as to be a company’s alter ego does not invoke strict liability on the company for his harassing behavior. Moreover, at least two courts in this Circuit — including this District — have held an employer strictly liable for the harassing conduct of its owner. See Pospicil v. The Buying Office, Inc., 71 F.Supp.2d 1346 (N.D.Ga.1999) (Forrester, J.) (material issue of fact as to whether employer could be held directly or vicarious liable; harasser was principal shareholder and, along with other management member, had received notice of complaints) (citing Dees, 168 F.3d at 421); Tillery v. ATSI, Inc., 242 F.Supp.2d 1051 (N.D.Ala.2003) (holding employer strictly liable for harassment by its owner). Likewise, many other courts following the Supreme Court’s reasoning in Faragher have found that vicarious liability automatically applies when the harassing supervisor is “indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy.” Ackel v. Nat’l Communications, Inc., 339 F.3d 376, 384-85 (5th Cir.2003) (quoting Faragher, 524 U.S. at 789, 118 S.Ct. 2275); see also Johnson v. West, 218 F.3d 725, 730 (7th Cir.2000); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir.2000); Mallinson-Montague v. Pocrnick, 224 F.3d 1224 (10th Cir.2000). See also United States Equal Employment Opportunity Commission v. Reeves, 84 Empl. Pract. Dec. 41,560, No. CV 0010515DTRZX, 2003 WL 22999369 (C.D.Cal. Dec.8, 2003); Velez Cortes v. Awning Windows, Inc., 253 F.Supp.2d 206 (D.C.P.R.2003). Based on the available law in this Circuit and the weight of authority elsewhere, the Court must conclude that the