Smith v. Pefanis (652 F. Supp. 2d 1308, 2009)

United States District Court for the Northern District of Georgia 2009-08-31

Citations

Full opinion text

OPINION AND ORDER

J. OWEN FORRESTER, Senior District Judge.

This matter is before the court on Defendant AME Financial Corporation’s motion for partial summary judgment [80]; Plaintiff’s motion for contempt sanctions against Ron Eckland, Atlanta Real Estate Law Group, LLC, David Ates, and The Jeffries Group [94]; the Non-Final Report and Recommendation of Magistrate Judge Russell G. Vineyard [116]; Defendants’ motions for extension of time [118], [119], and [120]; Defendants’ motion for leave to file objections out of time [125]; and Defendants’ objections to the Non-Final Report and Recommendation [122],

Plaintiff, Damon Smith, filed suit against Defendants James Pefanis, AME Financial Corporation and Georgia Mutual Mortgage Corporation, on March 17, 2008, alleging he suffered a sexually hostile work environment, sexual harassment resulting in a tangible employment action, and retaliation, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. Plaintiff also asserted state law causes of action of negligent hiring and retention, assault and battery, intentional infliction of emotional distress, and failure to provide plaintiff with a safe work environment in violation of O.C.G.A. § 34-2-10. Defendants moved for summary judgment as to all Plaintiffs claims save for assault and battery.

Magistrate Judge Russell G. Vineyard issued a Report and Recommendation recommending that Defendants’ motion for summary judgment be granted in part and denied in part. He recommends denying Defendants’ motion as to Plaintiffs hostile work environment, retaliation, and negligent hiring claims. He recommends granting Defendants’ motion as to Plaintiffs claims of intentional infliction of emotional distress and failure to provide plaintiff with a safe work environment in violation of O.C.G.A. § 34-2-10. Magistrate Judge Vineyard also considered Plaintiffs motion for contempt for failure of certain Defendants and non-defendants to comply with the Magistrate Judge’s orders as to subpoenas issued by Plaintiff pursuant to Federal Rule of Civil Procedure 45. He certified the facts surrounding the subpoena dispute and recommended that the district court issue a show cause order.

Motion for Summary Judgment

Plaintiff, an African-American male, worked as an account executive for AME and Georgia Mutual Mortgage Corporation from August 2007 until November 30, 2007. The Report and Recommendation sets forth in great detail the allegations made by Plaintiff to support his sexual harassment claim. This testimony includes direct propositions by Defendant Pefanis, a homosexual, as well as physical touching and rubbing of Plaintiffs body, and simulation of anal sex against Plaintiffs body. The Magistrate Judge concluded that Plaintiff had proffered sufficient evidence to show that Defendant Pefanis’s actions were pervasive, severe and “based on sex.” (Plaintiffs testimony is similar to that adduced in a case filed by another plaintiff against the same defendants. See Forsberg v. Pefanis, Civil Action No. 07-CV-3116-JOF-RGV. In Forsberg, Magistrate Judge Vineyard found that Defendant Pefanis’s actions were “based on sex” because he harassed females in order to humiliate them and males for sexual gratification. In Forsberg, in an order dated March 27, 2009, the court adopted inter alia this portion of the Magistrate Judge’s order.)

As to' his retaliation claim, Plaintiff testified that after innumerable propositions by Defendant Pefanis, Plaintiff once again strongly rejected Pefanis’s advances in the middle of November 2007. Plaintiff was terminated two weeks later. Defendants offered that Plaintiff was terminated for performance reasons because he did not meet his sales quota during the three months he was employed. Defendants further asserted that they had put Plaintiff on a performance improvement plan and warned him that his job was in jeopardy. Plaintiff testified that he was never told by anyone that his performance was deficient. He claims he was never put on a performance improvement plan, and, indeed, none was produced during discovery. He also asserts that his sales numbers met or exceeded the quotas as he understood them. Finally, he testified that at the time of his termination, none of Defendants’ employees told him he was being terminated for poor performance, rather they stated that he was being let go because “Pefanis want[ed] him gone” and that he was not a “good fit.” Defendants’ Human Resources Supervisor, in fact, told Plaintiff she did not agree with the decision to terminate him.

Defendants object to the Report and Recommendation for three reasons. First, Defendants contend that the Magistrate Judge erred in recommending the sexual harassment claim proceed because they argue Defendant Pefanis is an “equal opportunity offender” and therefore his conduct cannot be said to be “based on sex.” Second, Defendants contend that the Magistrate Judge erred in recommending that Defendants’ motion for summary judgment as to retaliation be denied because there are disputed facts as to the legitimacy of the reasons given for Plaintiffs termination. Finally, Defendants seek the benefit of the “same decision” defense to argue that Plaintiff will not be able to establish back pay or damages because he cannot work for a mortgage company anymore.

With respect to Plaintiffs sexual harassment claim, the court notes that Defendants do not object to the Magistrate Judge’s conclusion that Plaintiff set forth sufficient evidence on pervasiveness and severity, but rather only object to the Magistrate Judge’s finding that Defendant Pefanis’s actions were “based on sex.” For the reasons given in the Magistrate Judge’s Report and Recommendation, see pages 1324-26, the court agrees that Plaintiff has presented sufficient evidence from which a jury could conclude that Defendant Pefanis’s actions were “based on sex” and he is not an “equal opportunity offender.”

Defendants object to the Report and Recommendation on Plaintiffs retaliation claim arguing only that there was not sufficient evidence from which a jury could conclude that Defendants’ reasons for termination were pretextual. The court disagrees. The Magistrate Judge reviewed Plaintiffs ample evidence that job performance was not the real reason for Plaintiffs termination, including Plaintiffs testimony that he was never told his job was in danger; he met the sales quotas set out for him by Defendants; he was never placed on a performance improvement plan and none was produced in discovery; and at the time of his termination, he was not told his firing was based on his job performance. This is sufficient evidence from which a reasonable jury could conclude that Defendants’ stated reasons for termination were pretextual.

Finally, as for Defendants’ “same decision” objection, the court notes that the Magistrate Judge found that Defendants waived the defense on summary judgment because they made no argument in their briefs concerning the back pay issue. On this basis alone, the court can reject any notion of the “same decision” defense as Defendants have not previously raised it in the litigation. See Williams v. McNeil, 557 F.3d 1287 (11th Cir.2009) (holding district court has discretion to decline to consider party’s argument when argument was not presented first to magistrate judge, but rather was first raised in party’s objections to magistrate judge’s report and recommendation). In any event, Defendants do no better in their objections. Defendants vaguely allude to the fact that Plaintiff cannot be hired to work at a mortgage company without any further explanation. In his response to Defendants’ objections, Plaintiff presumes Defendants’ argument is based on the fact that many years ago, Plaintiff was convicted of the felony of criminal mischief. However, Defendants were aware of Plaintiffs prior conviction when he was hired, and therefore, they cannot claim the benefit of the “same decision” defense.

Motion for Contempt

Plaintiff moves for civil and criminal contempt sanctions pursuant to Federal Rule of Civil Procedure 45(e) and 18 U.S.C. § 401 against non-parties Ron Eckland; Atlanta Real Estate Law Group, LLC; The Jeffries Group, financial accountants; and David Ates, Defendants’ attorney, based on their failure to comply with the October 30, 2008, order of the Magistrate Judge directing them to produce any and all documents responsive to the August 11, 2008, Rule 45 subpoenas. In his Report and Recommendation, the Magistrate Judge reviews the materials he directed to be produced pursuant to these subpoenas. See Report and Recommendation, at 1336-38. He then discusses the parties’ briefs as to the motion for civil and criminal contempt, as well as a hearing held before the Magistrate Judge on January 27, 2009. Id. at 1338-41. Based on his review of this procedural and factual history, the Magistrate Judge concluded that Plaintiff sufficiently established a prima facie case that Eckland, the Atlanta Real Estate Law Group, LLC, The Jeffries Group, and David Ates failed to comply with the Court’s October 30, 2008, order. Therefore, he recommends that the district court issue an order directing them to show cause as to why they should not be adjudged in contempt. The Magistrate Judge did not recommend that criminal contempt sanctions be applied. See id. at 1342 n. 23. But for a fleeting reference in a footnote, Defendants did not object to this portion of the Magistrate Judge’s Report and Recommendation.

Pursuant to 28 U.S.C. § 636(e)(6)(B)(iii), in such cases where the district judge has assigned pretrial matters to the magistrate judge and acts pertaining to these matters are deemed to constitute civil contempt:

the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be held in contempt by reason of the facts so certified.

Id. The court agrees with the recommendation of the Magistrate Judge that Eckland, the Atlanta Real Estate Law Group, LLC, The Jeffries Group, and David Ates should show cause as to why civil contempt sanctions should not be entered against them for failure to comply with the October 30, 2008, order of Magistrate Judge Russell G. Vineyard.

Conclusion

In sum, the court ADOPTS the Report and Recommendation of the Magistrate Judge as the ORDER of this court. The court GRANTS IN PART AND DENIES IN PART Defendants’ motion for partial summary judgment [80]. The claims remaining in the case are sexual harassment and retaliation in violation of Title VII, negligent retention and hiring, and assault and battery.

The court agrees with the Magistrate Judge’s recommendation that sufficient evidence exists for the court to issue a show cause order as to why Ron Eckland; Atlanta Real Estate Law Group, LLC; The Jeffries Group, financial accountants; and David Ates should not be found in contempt. The court DIRECTS Plaintiff and Ron Eckland, Atlanta Real Estate Law Group, LLC, The Jeffries Group, and David Ates, to appear in Courtroom 1905 on Wednesday, September 30, 2009, at 10:30 a.m. for a hearing on the motion for contempt [94].

The court GRANTS IN PART AND DENIES IN PART Defendant AME Financial Corporation’s motion for partial summary judgment [80]; ADOPTS the Non-Final Report and Recommendation of Magistrate Judge Russell G. Vineyard [116] as the ORDER of this court; GRANTS Defendants’ motions for extension of time [118], [119], and [120]; GRANTS Defendants’ motion for leave to file objections out of time [125]; and REJECTS Defendants’ objections to the Report and Recommendation [122],

MAGISTRATE JUDGE’S NON-FINAL REPORT, RECOMMENDATION, AND ORDER

RUSSELL G. VINEYARD, United States Magistrate Judge.

Plaintiff Damon Smith brings this employment discrimination action against James Pefanis (“Pefanis”), AME Financial Corporation (“AME”), and Georgia Mutual Mortgage Corporation (“Georgia Mutual”), alleging he suffered a sexually hostile work environment, sexual harassment resulting in a tangible employment action, and retaliation in violation of Title VII of the CM Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e, et seq. [Doc. 1 ¶¶ 39-43, 59-62], Plaintiff also asserts state law claims of negligent hiring and retention, assault and battery, intentional infliction of emotional distress, and failure to provide plaintiff with a safe working environment in violation of O.C.G.A. § 34-2-10. [Id. ¶¶ 44-58], Defendants have moved for partial summary judgment as to all of plaintiffs claims except his claim for assault and battery, [Doc. 80], which plaintiff opposes, [Doc. 83]. For the reasons set forth herein, it is RECOMMENDED that defendants’ motion, [Doc. 72], be GRANTED in part and DENIED in part. Plaintiff has filed a motion for civil and criminal contempt and for sanctions, [Doc. 94], against Ron Eckland (“Eckland”), Atlanta Real Estate Law Group, LLC, (“ARELG”), attorney David Ates (“Ates”), and the Jeffries Group (“Jeffries”), which Eckland, ARELG, and Ates oppose, [Doc. 97]. For the reasons stated herein, it is RECOMMENDED that plaintiffs motion, [Doc. 94], be GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND

Plaintiff, an African-American male, worked as an account executive for AME and Georgia Mutual from August 2007 until November 30, 2007. [Doc. 80-3 ¶¶ 6, 71; Doc. 83-3 ¶ 1; Doc. 81-5 (Abbott Decl.) ¶ 4]. AME and Georgia Mutual are in the business of providing mortgage brokerage services. [Doc. 1 ¶¶ 6-7], Pefanis is the Chief Executive, Financial Officer, and co-owner of AME and Georgia Mutual. [Doc. 1 ¶ 5; Doc. 88-3 ¶¶ 2-3; Forsberg Doc. 73-4 (Forsberg Decl.) ¶ 6; Forsberg Doc. 73-5 (Brown Decl.) ¶ 2]. Plaintiff reported to Robert Anderson (“Anderson”), AME’s Wholesale Manager. [Doc. 80-3 ¶ 7; Doc. 81-4 (Martin Decl.) ¶ 5; Doc. 81-15 (Anderson Decl.) ¶ 2], After working at AME for several weeks, plaintiff was transferred from outside sales to the inside sales department. [Doc. 80-3 ¶ 8; Doc. 115 (Pl.’s Dep.) at 295-96, 336-37].

Plaintiff alleges that Pefanis engaged in objectionable behavior of a racial and sexual nature before and during plaintiffs employment at AME and Georgia Mutual. [Doc. 83-3 ¶ 2; Forsberg Doc. 734 ¶¶ 7, 22-23; Forsberg Doc. 73-5 ¶¶ 4-7; Forsberg Doc. 73-6 (Cross Decl.) ¶¶ 8-17; Forsberg Doc. 73-7 (Felion Decl.) ¶¶ 3-7]. For example, plaintiff claims that prior to his employment, Pefanis, who is homosexual, sexually harassed numerous male and female employees in the presence of AME management, including kissing employees, repeatedly grabbing and groping the genitalia and other private body parts of male and female employees, exposing his genitalia to employees, telling employees he wanted to have sex with them, thrusting his crotch into employees’ backsides, and on at least one occasion, forcibly taking off a male employee’s pants and sticking his finger in the employee’s anus. [Doc. 83-3 ¶¶ 5-6, 8; Forsberg Doc. 734 ¶¶ 6-20; Forsberg Doc. 73-6 ¶¶ 8-13, 15-17; Forsberg Doc. 73-7 ¶¶3-5, 7; Doc. 73-5 ¶¶ 4-7]. Plaintiff claims that because Pefanis is homosexual, he harasses males and females for different purposes. [Doc. 83-3 ¶¶ 4, 7; Forsberg Doc. 73-4 ¶ 7]. Specifically, plaintiff claims that Pefanis sexually harasses males for his sexual gratification, whereas he sexually harasses females to demean, degrade, and subordinate them. [Doc. 83-3 ¶¶ 4, 7; Forsberg Doc. 73-4 ¶ 7]. Pefanis reportedly told employees at a meeting in April 2008 that if they did not like his conduct in the workplace, “there’s the door and you can go f_ yourself.” [Doc. 83-3 ¶ 10; Forsberg Doc. 73-7 ¶ 10].

After defendants hired plaintiff and he had already started working at AME, Pefanis learned from a background check that plaintiff previously had drug charges filed against him that were ultimately dismissed, and also learned from plaintiff that he had been convicted of the felony of criminal mischief as a teenager when he fired a gun at a car. [Doc. 80-3 ¶¶ 59, 67, 70, 92; Doc. 83-3 ¶ 49; Doc. 115 at 94-97, 309-10, 313, 318, 323-24]. Plaintiff offered to provide two other background checks that had been performed by prior prospective employers that did not include the felony charge. [Doc. 80-3 ¶ 93; Doc. 115 at 321], Pefanis agreed to keep one of those prior reports in plaintiffs file and to retain plaintiff, but repeatedly told him, “Don’t forget what I did for you, you little drug dealer.” [Doc. 80-3 ¶¶ 93, 95; Doc. 83-3 ¶ 51; Doc. 115 at 321, 324-27]. Plaintiff complains that on his second day of employment, Pefanis began directing sexually inappropriate conduct toward him. [Doc. 83-3 ¶ 12; Doc. 115 at 225-31], Specifically, plaintiff claims that during his employment, Pefanis sexually propositioned him on at least four occasions, making statements such as, “Are we going to have sex or not?” and “Let’s do it,” and inappropriately touched him on more than five occasions. [Doc. 80-3 ¶¶ 90-91; Doc. 83-3 ¶¶ 47-48; Doc. 115 at 303-10],

Plaintiff also claims that in the presence of his direct supervisor, Anderson, Pefanis embarrassed and offended him by stating, “You’re gay aren’t you?,” and commenting that, based on plaintiffs style of shoes, “he has to be gay.” [Doc. 80-3 ¶ 72; Doc. 83-3 ¶ 13; Doc. 115 at 225-31]. During this time, plaintiff claims he also observed Pefanis make numerous sexually inappropriate and crude comments about other male employees, such as announcing they have a “nice butt,” and parading a male employee around the office stating, “Does this look like a 40-year old butt?” [Doc. 80-3 ¶ 79; Doc. 83-3 ¶¶ 14, 17; Doc. 115 at 232-33, 247-48],

According to plaintiff, Pefanis made such sexual comments to and/or about other employees in his presence on a daily basis and would frequently talk about sex in the office. [Doc. 83-3 ¶¶ 15-16; Doc. 115 at 251-52, 259]. In fact, plaintiff claims that during his entire 90-day period of employment with AME, he witnessed Pefanis engage in sexually offensive conduct on at least fifty occasions. [Doc. 80-3 ¶ 83; Doc. 115 at 261-62], For example, Pefanis allegedly told plaintiff that he had sex with Anderson and Anderson had a small penis, and he wished it was bigger. [Doc. 80-3 ¶ 77; Doc. 83-3 ¶¶ 25-26; Doc. 115 at 242-43, 245-46]. Plaintiff claims Pefanis repeatedly asked him if he had a big penis. [Doc. 83-3 ¶ 63; Doc. 83-4 at 6]. Pefanis allegedly engaged in this behavior on numerous occasions in front of his management team, including his Human Resources Manager Phyllis Lee (“Lee”). [Doc. 83-3 ¶ 19; Doc. 115 at 234],

According to plaintiff, Pefanis also began to physically touch him. For example, Pefanis would sit next to plaintiff, place his hands on plaintiffs thigh, and repeatedly rub his hands back and forth on plaintiffs thigh. [Doc. 80-3 ¶74; Doc. 83-3 ¶¶21-22; Doc. 115 at 239-42], Pefanis would also make statements to plaintiff while touching him such as “You know you’re my little drug dealer. You know I did this for you. Don’t forget what I did for you,” “We should have sex,” and “I will make sure you enjoy it.” [Doc. 83-3 ¶¶ 52, 62; Doc. 115 at 324-25; Doc. 83-4 at 6-7], The first time Pefanis engaged in this type of behavior, plaintiff told Pefanis that he was married and not gay. [Doc. 80-3 ¶ 75; Doc. 83-3 ¶ 23; Doc. 115 at 241-42], Thereafter, plaintiff repeatedly told Pefanis that he was not gay, but Pefanis’ conduct continued. [Doc. 83-3 ¶ 24; Doc. 115 at 242-43].

On one occasion, plaintiff was in Anderson’s office when Pefanis walked into the office, rubbed his body against plaintiffs body, and stated “I got two tall handsome black guys in my office. You know I want both of you together.” [Doc. 80-3 ¶ 84; Doc. 83-3 ¶¶ 31-32; Doc. 115 at 262-65]. Plaintiff, who was humiliated, left the office. [Doc. 83-3 ¶ 34; Doc. 115 at 264], Anderson later told plaintiff that Pefanis should not have said that and apologized on Pefanis’ behalf for his conduct. [Doc. 80-3 ¶ 84; Doc. 83-3 ¶35; Doc. 115 at 265-68]. He also advised plaintiff that he had talked to Pefanis on more than one occasion about Pefanis’ conduct. [Doc. 83-3 ¶ 36; Doc. 115 at 267], Plaintiff told Anderson that apologizing to him for Pefanis’ conduct was not a satisfactory answer to the conduct. [Doc. 83-3 ¶ 38; Doc. 115 at 265]. Thereafter, plaintiff reported this incident to Human Resources Manager Lee to no avail. [Doc. 83-3 ¶ 39; Doc. 115 at 266],

On another occasion, plaintiff attended a closed-door team meeting with Pefanis, Anderson, and Inside Sales Manager Sean Martin. [Doc. 80-3 ¶ 5; Doc. 83-3 ¶ 40; Doc. 115 at 251-54; Doc. 81^ ¶ 1]. According to plaintiff, at the beginning of the meeting, Pefanis stated, “Does anyone have a penis I can put in my mouth?” [Doc. 80-3 ¶ 80; Doc. 83-3 ¶ 40; Doc. 115 at 251-54], Additionally, at a birthday luncheon for an AME employee, Pefanis spoke about a sex toy and then turned to plaintiff and stated, “Do you even like sex?” [Doc. 83-3 ¶¶ 43-44, 46; Doc. 115 at 332; Doc. 68 (Pefanis Dep.) at 74-75]. During this same luncheon, Pefanis also referenced a sushi roll that had been served and told plaintiff, “If you like sex you are going to like that roll.” [Doc. 80-3 ¶ 38; Doc. 83-3 ¶ 45; Doc. 68 at 74], On another occasion, Pefanis allegedly asked plaintiff if he was going to have sex with him and again reminded him of the favor he had done for his “little drug dealer.” [Doc. 83-3 ¶ 53; Doc. 115 at 323-31], According to plaintiff, he declined Pefanis’ advances, and Pefanis again stated, “Don’t forget the favor I have done for you.” [Doc. 83-3 ¶ 54; Doc. 115 at 323-31],

In a separate incident, plaintiff claims that Pefanis approached him in a hallway, grabbed plaintiff from behind, forced himself against plaintiff with his pelvic area, pressing his crotch against plaintiffs buttocks, simulating anal sex. [Doc. 80-3 ¶ 84; Doc. 83-3 ¶ 55; Doc. 115 at 269-72]. Plaintiff used his elbow to push Pefanis away and said, “Get off of me!” [Doc. 83-3 ¶ 55; Doc. 115 at 272]. According to plaintiff, Lee witnessed the incident and later pulled plaintiff aside and apologized for Pefanis’ conduct. [Doc. 80-3 ¶ 85; Doc. 83-3 ¶¶ 57-58; Doc. 115 at 272-73]. Lee stated that she wished she could do something, but that her “job is on the line just as yours is.” [Doc. 83-3 ¶¶ 59, 74; Doc. 115 at 273]. Lee further stated, “What can I do? I am his employee.” [Doc. 83-3 ¶ 59; Doc. 115 at 273].

In addition to the previous incidents, Pefanis, on one occasion, reached from behind plaintiff during a team meeting, and, in the presence of other employees, rubbed plaintiffs chest. [Doc. 80-3 ¶ 91; Doc. 83-3 ¶ 60; Doc. 115 at 309-10]. Pefanis also smacked plaintiff on the buttocks during another incident and stated, “Nice ass. Let’s try it.” [Doc. 80-3 ¶ 86; Doc. 83-3 ¶ 61; Doc. 83-4 at 6]. Whenever plaintiff had to enter Pefanis’ office, Pefanis would ask plaintiff to lock his door while plaintiff was in the office “so that no one would see.” [Doc. 83-3 ¶ 64; Doc. 83-4 at 7], Pefanis’ actions and conduct disgusted and offended plaintiff, and plaintiff informed Pefanis that he was offended, but Pefanis ignored plaintiff and continued his actions toward him. [Doc. 83-3 ¶¶ 65-66; Doc. 83-4 at 7].

AME’s sexual harassment policy instructed its employees to report any harassment to Pefanis as AME’s Chief Financial Officer. [Doc. 83-3 ¶ 68; Doc. 83^1 at 9]. Plaintiff claims that Pefanis’ actions were often witnessed by AME’s management team, including Anderson and Lee. [Doc. 83-3 ¶ 67; Doc. 115 at 256], Therefore, plaintiff did not believe there was any reason to report Pefanis’ conduct. [Doc. 83-3 ¶ 67; Doc. 115 at 256], Nevertheless, plaintiff repeatedly reported Pefanis’ conduct to at least three different members of AME’s management team, including Anderson, Lee, and Abbott. [Doc. 80-3 ¶ 81; Doc. 83-3 ¶69; Doc. 115 at 256-59]. Specifically, plaintiff asked Anderson to do something about Pefanis’ conduct, but Anderson stated, “that’s just Jim,” and made it clear that plaintiff would just have to tolerate Pefanis’ actions if he wanted to continue to work at AME. [Doc. 83-3 ¶ 70; Doc. 83-4 at 4-5]. Plaintiff also had lengthy conversations with Lee about Pefanis’ conduct. [Doc. 83-3 ¶ 71; Doc. 115 at 258]. When plaintiff first complained to Lee within weeks of beginning his employment, Lee also stated, “That’s just Jim. He has always been like that.” [Doc. 83-3 ¶ 72; Doc. 83-4 at 4]. Lee likewise made it clear that plaintiff would just have to tolerate Pefanis’ conduct. [Doe. 83-3 ¶ 73; Doc. 83-4 at 4],

Finally, plaintiff alleges that approximately two weeks prior to his termination from his employment with AME, an incident occurred in Anderson and Lee’s presence. [Doc. 83-3 ¶ 75; Doc. 115 at 292-94], Plaintiff was discussing a business issue with Anderson when Pefanis approached plaintiff, looked him in the eye, and stated, “Are we going to have sex or what?” [Doc. 80-3 ¶ 86; Doc. 83-3 ¶ 76; Doc. 115 at 293], Plaintiff replied, “No” and immediately left the office building. [Doc. 83-3 ¶ 76; Doc. 115 at 293],

The following day, plaintiff returned to work and Anderson approached him and asked him to have lunch with him that day. [Doc. 80-3 ¶ 87; Doc. 83-3 ¶ 78; Doc. 115 at 293-94]. During lunch, Anderson informed plaintiff that while he was doing a good job and his numbers looked good, “Pefanis wants you gone.” [Doc. 80-3 ¶ 87; Doc. 83-3 ¶¶ 77, 79, 91; Doc. 115 at 293-96]. Anderson also advised plaintiff that he should “stay the course” and “keep doing what you’re doing.” [Doc. 80-3 ¶ 87; Doc. 83-3 ¶ 80; Doc. 115 at 295], Anderson did not give plaintiff a specific reason that Pefanis wanted him gone, and admitted that Pefanis had no reason to let him go. [Doc. 83-3 ¶ 80; Doc. 115 at 295].

A few days later, on November 30, 2007, Abbott approached plaintiff and asked to speak with him. [Doc. 83-3 ¶ 81; Doc. 115 at 336; Doc. 81-5 ¶ 15]. At this time, Abbott advised plaintiff “we’re actually letting you go today,” and said, “sorry things did not work out,” but “everybody is not a good fit.” [Doc. 83-3 ¶ 82; Doc. 115 at 337]. Abbott did not specifically provide plaintiff with a reason for his termination other than he was “not a good fit.” [Doc. 83-3 ¶ 83; Doc. 115 at 337], Abbott did state that he wanted plaintiff to “ramp up,” meaning increase his sales quota, and plaintiff responded by pointing out that he had been on target with his numbers the entire time he had been with AME. [Doc. 83-3 ¶ 84; Doc. 115 at 337]. Abbott acknowledged that plaintiff had reached his target goals while at AME, but stated that he wished plaintiff had done more. [Doc. 83-3 ¶ 84; Doc. 115 at 337]. After this conversation, plaintiff packed up his things and left the office building. [Doc. 83-3 ¶ 84; Doc. 115 at 337].

After his termination, plaintiff spoke with Lee. [Doc. 83-3 ¶ 85; Doc. 83-4 at 11]. Lee told plaintiff that she did not agree with the decision to terminate him, and that she did not even know about the decision until defendants had already terminated him. [Doc. 83-3 ¶ 86; Doc. 83-4 at 11]. In December 2007, plaintiff also communicated with Anderson in order to request a letter of recommendation, which Anderson provided for plaintiff. [Doc. 83-3 ¶ 87; Doc. 83-4 at 11; Doe. 81-15 ¶¶ 60-62]. Thereafter, on March 17, 2008, plaintiff filed the instant action against defendants.

II. DISCUSSION

A. Defendants ’ Motion for Partial Summary Judgment

Plaintiff contends that he endured a hostile work environment because he was sexually harassed by Pefanis, the co-owner of AME and Georgia Mutual. [Doc. 83 at 8; Doc. 1 ¶¶ 39-43]. He further contends that he suffered a tangible employment action when he was terminated from his employment with AME as a result of Pefanis’ alleged sexual harassment. [Doc. 83 at 8; Doc. 1 ¶¶ 32, 39-43]. Plaintiff also alleges that defendants retaliated against him by terminating his employment for engaging in protected activity by opposing defendants’ violations of Title VII. [Doc. 1 ¶¶ 60-61]. Finally, plaintiff alleges that defendants negligently hired and/or retained Pefanis with knowledge of Pefanis’ practices of sexual harassment and assault and battery, intentionally inflicted emotional distress, and failed to provide him with a safe working environment in violation of O.C.G.A. § 34-2-10. [Id. ¶¶45, 54, 57]. Defendants seek summary judgment on all of plaintiffs claims other than his claim of assault and battery. [Doc. 80-2], The Court will address the merits of defendants’ motion with regard to each of these claims.

1. Summary Judgment Standard

Summary judgment is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence of any genuine issue of material facts, upon which the non-moving party must then submit specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial[,]” summary judgment should be granted. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. In ruling on a motion for summary judgment, the Court views all evidence in the light most favorable to and makes all reasonable inferences in the favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.2003).

2. Title VII Claims

a. Sexual Harassment

“Title VII prohibits sex-based discrimination that alters the terms and conditions of employment.” Nurse “BE” v. Columbia Palms W. Hosp. Ltd. P’ship, 490 F.3d 1302, 1308 (11th Cir.2007). “Generally, sexual harassment comes in two forms: harassment that does not result in a tangible employment action (traditionally referred to as ‘hostile work environment’ harassment), and harassment that does result in a tangible employment action (traditionally referred to as ‘quid pro quo’ harassment).” Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 508 (11th Cir.2000). See also Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir.2006). See generally Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751-54, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (noting that the terms “quid pro quo” and “hostile work environment” retain limited utility in “making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether”). “An employer accused of quid pro quo harassment will be vicariously liable per se, and will not be permitted to assert an affirmative defense if the tangible employment action resulted from his sexual harassment.” Donaldson v. CDB, Inc., Civil Action No. 2:07CV122-KS-MTP, 2008 WL 2704829, at *5 (S.D.Miss. July 8, 2008). “An employer accused of hostile work environment harassment will also be held vicariously liable unless he can prove both prongs of the Ellerth/Faragher defense....” Id. Here, plaintiff relies on both forms to support his sexual harassment claim. Defendants only challenge whether plaintiff has established a prima facie case of hostile work environment and make no argument with regard to plaintiffs tangible employment action claim.

i. Hostile Work Environment

In order to establish a prima facie case of hostile work environment sexual harassment, plaintiff must show: (1) he belongs to a protected group; (2) he was subjected to unwelcome sexual harassment; (3) the harassment complained of was based upon his sex; (4) the harassment complained of was sufficiently severe or pervasive to alter the terms and conditions of employment; and (5) the employer “knew or should have known of the harassing conduct but failed to take prompt remedial action.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275, 1278 (11th Cir.2002) (citing Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir.2000)). See also Criswell v. Intellirisk Mgmt. Corp., 286 Fed.Appx. 660, 661-62 (11th Cir.2008) (unpublished); Jones v. City of Lakeland, 318 Fed.Appx. 730, 734-35 (11th Cir.2008) (unpublished). On summary judgment, defendants dispute only the third and fourth elements. [Doc. 80-2 at 5-13].

(a) Based on Sex

Defendants argue that the alleged harassment was not directed at plaintiff because of his sex since plaintiff alleges that Pefanis allegedly harassed both male and female employees. [Doc. 80-2 at 5-6; Doc. 90 at 2-6]. Specifically, plaintiffs evidence shows that Pefanis repeatedly grabbed and groped the genitalia and other private body parts of both male and female employees. [Forsberg Doc. 73-4 ¶¶ 7, 18; Forsberg Doc. 73-7 ¶¶ 4-5; Forsberg Doc. 73-6 ¶ 13; Forsberg Doc. 73-5 ¶ 4]. Therefore, defendants contend that plaintiff cannot show that any alleged harassment he suffered was based on his sex. The Court disagrees.

“Harassment is not ‘automatically discrimination because of sex merely because the words used have sexual content or connotations. The critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Petcou v. C.H. Robinson Worldwide, Inc., Civil Action File No. 1:06-CV-2157-HTW-GGB, 2008 U.S. Dist. LEXIS 8885, at *23 (N.D.Ga. Feb. 5, 2008) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). See also Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1302 (11th Cir.2007). In fact, “what matters is whether the harassment that is visited upon members of different races or genders is truly equal in terms of ... prevalence, severity and impact.” Wentworth v. Hedson, 493 F.Supp.2d 559, 568 (E.D.N.Y.2007). “Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination [on the basis of sex].” Oncale, 523 U.S. at 81, 118 S.Ct. 998 (internal marks omitted); see also Petcou, 2008 U.S. Dist. LEXIS 8885, at *23-24. Therefore, Title VII is only concerned with “ ‘whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Givens v. Chambers, 548 F.Supp.2d 1259, 1279 (M.D.Ala.2008) (quoting Baldwin, 480 F.3d at 1302).

Courts have found that harassing conduct that is equally offensive to male and female employees or that is inflicted on both sexes is not harassment based on sex. Holman v. Indiana, 211 F.3d 399, 403 (7th Cir.2000); Henson v. City of Dundee, 682 F.2d 897, 904, 905 n. 11 (11th Cir.1982); Myers v. Office Depot, Inc., No. 06-CV-11252, 2007 WL 2413087, at *4 (E.D.Mich. Aug. 21, 2007); Donlow v. SBC Commc’ns, Inc., No. 05-C-0548, 2006 WL 1479548, at *2 (E.D.Wis. May 25, 2006). “On the other hand, ‘[t]he mere fact that men and women are both exposed to the same offensive circumstances on the job site ... does not mean that, as a matter of law, their work conditions are necessarily equally harsh.’” Petcou, 2008 U.S. Dist. LEXIS 8885, at *24-25 (quoting Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir.2004)). See also Kampmier v. Emeritus Corp., 472 F.3d 930, 940-41 (7th Cir.2007). As previously mentioned, the critical inquiry is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80, 118 S.Ct. 998. Thus, the courts that have found that Title VII does not cover the “equal opportunity” or “bisexual” harasser did so on the basis that members of one sex were exposed to identical disadvantageous terms or conditions of employment as the other sex. Holman v. State of Indiana, 24 F.Supp.2d 909, 913 (N.D.Ind.1998); Donlow, 2006 WL 1479548, at *2; Fitzpatrick v. Winn-Dixie Montgomery, Inc., 153 F.Supp.2d 1303, 1305 (M.D.Ala.2001). However, that is not the case here.

In this case, plaintiff has presented sufficient evidence to establish that he was harassed based on his sex. “In order to establish a same-sex sexual harassment claim based [on] sexual desire, a plaintiff must offer credible evidence of the harasser’s homosexuality.” EEOC v. Family Dollar Stores, Inc., Civil Action File No. 1:06-CV-2569-TWT, 2008 WL 4098723, at *13 (N.D.Ga. Aug. 28, 2008). It is undisputed that Pefanis is homosexual. [Doc. 83-3 ¶¶ 2-3; Forsberg Doc. 73-4 ¶ 6]. While there is evidence that Pefanis regularly groped both male and female employees, his alleged harassment of plaintiff was of a different character. Indeed, “[a] harasser may well make sexually demeaning remarks and putdowns to the plaintiff for sex-neutral reasons ... but he is far less likely to make sexual advances without regard to sex.” La Day v. Catalyst Tech., Inc., 302 F.3d 474, 480 (5th Cir.2002) (emphasis omitted). Plaintiffs evidence shows that Pefanis used sex-specific language toward him by repeatedly propositioning plaintiff for sex and asking him if he had a big penis. [Doc. 83-3 ¶ 63; Doc. 83-4 at 6]. Pefanis regularly made statements such as “We should have sex,” “I will make sure you enjoy it,” and “Nice ass. Let’s try it,” and asked him if he was going to have sex with him. [Doc. 80-3 ¶ 86; Doc. 83-3 ¶¶ 52-53, 61-62, 76; Doc. 115 at 293, 323-31; Doc. 83-4 at 6-7], Pefanis also grabbed plaintiff from behind, forced himself against plaintiff with his pelvic area, pressing his crotch against plaintiffs buttocks, simulating anal sex. [Doc. 80-3 ¶ 84; Doc. 83-3 ¶ 55; Doc. 115 at 269-72],

Plaintiff has presented evidence from which a reasonable factfinder could conclude that he was a victim of sexual advances by Pefanis based on sexual attraction to which members of the opposite gender were not subjected. See Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir.2001) (“[W]hen a gay or lesbian supervisor treats a same-sex subordinate in a way that is sexually charged, it is reasonable to infer that the harasser acts as he or she does because of the victim’s sex.”); McCoy v. Macon Water Auth., 966 F.Supp. 1209, 1217 (M.D.Ga.1997) (“Because of the demand by the harasser for sexual gratification, the victim is singled out because of his or her gender. Thus, there is discrimination based upon the victim’s sex in violation of Title VII.”) (internal marks and citation omitted); cf. Forsberg v. Pefanis, Civil Action No. 1:07-CV-3116-JOF-RGV, 2009 WL 901015, at *7 (N.D.Ga. Jan. 26, 2009), adopted in part by Forsberg v. Pefanis, Civil Action No. 1:07-CV-3116-JOF, 2009 WL 901012, at *1 (N.D.Ga. Mar. 27, 2009). Here, while Pefanis may have harassed both male and female employees, plaintiffs evidence shows that the conduct directed at him was based on his sex since Pefanis allegedly repeatedly propositioned him for sex and inappropriately touched him on several occasions. Thus, plaintiff has made a showing that the alleged harassment he endured was based on his sex sufficient to survive summary judgment.

(b) Severe or Pervasive

The Eleventh Circuit has noted that the “severe or pervasive” requirement “is the element that tests the mettle of most sexual harassment claims.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir.2000), abrogated on other grounds as recognized by Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir.2008) (citation omitted). “And, to be actionable under the statute, the Supreme Court has ‘made it clear that [the] conduct must be extreme.’” Banks v. Sam-J Int’l, No. Civ.A. 3:00CV184, 2001 WL 34056053, at *3 (E.D.Va. Jan. 18, 2001) (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275). “The determination of whether the alleged conduct is severe and pervasive, such that it altered the terms and conditions of plaintiffs employment” involves a two-pronged inquiry. Burroughs v. Smurfit Stone Container Corp., LP, 506 F.Supp.2d 1002, 1012 (S.D.Ala.2007). The Court must first determine whether the employee “subjectively perceived” the harassing conduct as severe and pervasive. Id. (citation omitted). If so, the Court must then consider whether the employee’s perception is objectively reasonable. Id. See also Parker v. Atlanta Newspapers Name Holding Corp., No. 05-15722, — Fed. Appx. -, -, 2006 WL 1594427, at *2 (llth Cir. June 12, 2006) (unpublished); Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.1999); Faragher, 524 U.S. at 787, 118 S.Ct. 2275. Thus, relevant inquiry is whether a reasonable person in plaintiffs position would find the harassment severe and pervasive. Johnson, 234 F.3d at 509.

The Eleventh Circuit has identified the following factors that should be considered in this analysis: “(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 (citation omitted). Proof is not required on each factor individually as the Court employs a totality of the circumstances approach. Hulsey, 367 F.3d at 1248; see also Dar Dar v. Associated Outdoor Club, Inc., 201 Fed.Appx. 718, 721 (11th Cir.2006) (unpublished); Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). “Although [the Eleventh Circuit] examine[s] the statements and conduct complained of collectively to determine whether they were sufficiently pervasive or severe to constitute sexual harassment, the statements and conduct must be of a sexual or gender-related nature ... before they are considered in determining whether the severe or pervasive requirement is met.” Gupta, 212 F.3d at 583 (citations omitted).

In analyzing the “sufficiently severe or pervasive” element of a sexual harassment case, “courts routinely remind plaintiffs that ‘Title VII is not a federal civility code.’ ” Breda v. Wolf Camera, Inc., 148 F.Supp.2d 1371, 1375 (S.D.Ga.2001) (quoting Mendoza, 195 F.3d at 1245); see also Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.1995) (“[Title VII] is not designed to purge the workplace of vulgarity.”); EEOC v. R & R Ventures, 244 F.3d 334, 339 (4th Cir.2001) (“Boorish behavior may exist apart from any propensity to discriminate.”). “This requirement is regarded ‘as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace— such as male-on-male horseplay or inter-sexual flirtation- — -for discriminatory conditions of employment.’ ” Breda, 148 F.Supp.2d at 1375 (quoting Oncale, 523 U.S. at 81, 118 S.Ct. 998) (internal quotations omitted). “ ‘[S]imple teasing,’ offhand comments, and isolated incidents (unless extremely serious)” will not amount to a hostile work environment. Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (citations omitted).

With these standards in mind, the Court turns to plaintiffs allegations. The Court accepts as true that plaintiff subjectively perceived the harassment to be severe and pervasive. Moreover, the Court finds that plaintiffs evidence also supports his claim that the alleged harassment was so objectively offensive that a reasonable person would have found it severe or pervasive. Plaintiffs claim is supported by Pefanis’ alleged frequent sexually offensive conduct, including the following specific allegations pertaining to plaintiff:

• Pefanis’ comments that plaintiff owed him sex in return for hiring him despite his criminal background. [Doc. 115 at 321, 324-27].

• Pefanis’ comments to plaintiff on several occasions of “are we going to have sex or not” and “Let’s do it,” as well as comments that “we should have sex” and “I will make sure you enjoy it.” [Id. at 293, 303-10, 324-25].

• Pefanis’ comment to plaintiff that he had sex with plaintiffs supervisor and that his supervisor had a small penis that he wished was bigger. [Id. at 242-43, 245-46].

• Pefanis repeatedly asking plaintiff if he had a big penis. [Doc. 83-3 ¶ 63; Doc. 83-4 at 6].

• Pefanis’ rubbing against plaintiffs body and commenting to plaintiff and plaintiffs supervisor that he wanted to have sex with both of them together. [Doc. 115 at 262-65],

• Pefanis’ request at a closed-door team meeting as to whether “anyone [had] a penis [he could] put in [his] mouth.” [Id. at 251-54].

• Pefanis’ comment to plaintiff during a luncheon asking plaintiff if he even liked sex and talking about sex toys. [Id. at 332; Doe. 68 at 74-75].

• Pefanis’ repeated touching of plaintiff by placing his hands on plaintiffs thigh and rubbing his hands back and forth on plaintiffs thigh and at least one incident of rubbing plaintiffs chest in the presence of other employees during a team meeting. [Doc. 115 at 239^2, 309-10],

• Pefanis’ smacking plaintiff on the buttocks and stating, “Nice ass. Let’s try it.” [Doc. 83-3 ¶ 61; Doc. 83-4 at 6].

• Pefanis’ grabbing plaintiff from behind and grinding his pelvic area against plaintiffs buttocks to simulate anal sex. [Doc. 115 at 269-72],

“Conduct that occurs every day weighs the frequency factor in the employee’s favor.” Thornton v. Flavor House Products, Inc., No. 107-CV-712-WKW [WO], 2008 WL 5328492, at *9 (M.D.Ala. Dec. 19, 2008). Here, plaintiffs allegations regarding Pefanis’ daily conduct in the office and the specific actions directed at plaintiff clearly meet the frequency factor. Johnson, 234 F.3d at 509; Deel v. Metromedia Rest. Servs. Mgmt. Co., L.P., No. 3:05CV120/MCR, 2006 WL 897606, at *1, 11 (N.D.Fla. Apr. 3, 2006). As for severity, considering all of the circumstances taken together, including multiple sexual advances coupled with offensive physical touches, plaintiffs allegations are sufficient to establish a prima facie ease and survive summary judgment. Dar Dar, 201 Fed.Appx. at 721-22; Parker, — Fed.Appx. at -, 2006 WL 1594427, at *3; Olson v. Lowe’s Home Centers Inc., 130 Fed.Appx. 380, 388 (11th Cir.2005) (unpublished); Hulsey, 367 F.3d at 1247-49; Dees v. Johnson Controls World Serv., Inc., 168 F.3d 417, 418, 422 n. 12 (11th Cir.1999); Johnson, 234 F.3d at 509; Sullivan v. Lake Region Yacht & Country Club, Inc., 996 F.Supp. 1463, 1466-67 (M.D.Fla.1998).

Additionally, plaintiff has sufficiently established the third factor by showing that the conduct was both physically threatening and humiliating. Indeed, on at least two occasions, Pefanis grabbed plaintiff, rubbed his body against his, and on one of those occasions, simulated anal sex. [Doc. 115 at 262-65, 269-72], Additionally, plaintiff has presented evidence that Pefanis’ actions, which were often witnessed my members of defendants’ management team or other employees, humiliated him. [Doc. 115 at 225-31, 234, 256, 264, 269-73, 293, 309-10, 332], Under these facts, a reasonable employee in plaintiffs position would perceive Pefanis’ conduct to be physically threatening and humiliating. See Olson, 130 Fed.Appx. at 388; Hulsey, 367 F.3d at 1248; Johnson, 234 F.3d at 509; Jeffers v. Russell County Bd. of Educ., No. 3:06-cv-0685-WKW, 2008 WL 410621, at *9 (M.D.Ala. Feb. 13, 2008). Finally, plaintiff has shown that Pefanis’ actions interfered with his job performance in that plaintiff was unable to concentrate on his job, often had to leave the office after an incident with Pefanis, and was ultimately terminated from his employment.

Defendants rely on Mitchell v. Pope, 189 Fed.Appx. 911, 913 (11th Cir.2006) (unpublished), Mendoza, 195 F.3d at 1247, and Gupta, 212 F.3d at 585, in support of their argument that the conduct alleged here does not meet the severe or pervasive element of a sexual harassment claim. [Doc. 80-2 at 9-10]. In Mitchell, the plaintiff alleged that the harasser tried to kiss her after a Christmas party and called her a “frigid bitch” when she refused, made comments to plaintiff such as “you must be working out,” “you sure do look fíne,” “your ass sure does look fíne,” and that she could “just walk into the room and [he gets] an erection,” showed up on numerous occasions in her driveway, once drunk, telling her that he loved her, attempted to look down her shirt, rubbed up against her, chased her around the office, once picked her up, asked her in telephone conversations if she was dressed or naked, opened the women’s bathroom door and turned the lights off when he knew plaintiff was inside, simulated “humping” another female employee with that employee’s consent, made sexual comments and gestures about a female magistrate judge, referred to another employee in a derogatory manner, and asked plaintiff to go to a hotel hot tub with him when they were at a conference and called her a “frigid bitch” when she refused. 189 Fed.Appx. at 913.

In Mendoza, the plaintiff alleged that her supervisor constantly stared at her and followed her around, would “look [her] up and down ... in a very obvious fashion,” stared at her groin area and made a sniffing motion on two occasions, rubbed his right hip against hers while touching her shoulder and smiling on one occasion, and commenting that he’s “getting fired up, too” in response to plaintiffs statement that she “came in here to work.” 195 F.3d at 1242-43. Additionally, Gupta involved allegations of conduct over a six or seven month period that included flirtatious comments such as “[you are] looking very beautiful”; frequent late-night calls to plaintiffs house asking personal questions; unbuckling his pants and tucking in his shirt in front of plaintiff; and one incident where the harasser placed his hand on the plaintiffs inner thigh. 212 F.3d at 584-86.

In each of these cases, the Eleventh Circuit found that the conduct alleged fell short of the level of either severe or pervasive conduct, finding that much of the conduct was either not overtly sexual, involved mostly “offensive utterances,” or that the more severe allegations were infrequent. Mitchell, 189 Fed.Appx. at 913; Mendoza, 195 F.3d at 1247-49; Gupta, 212 F.3d at 584-85. Indeed, there were only minor allegations of physical contact in these cases. In the present case, however, the sexual comments and physical touching alleged were far more frequent, severe, and threatening than the allegations in Mitchell, Mendoza, and Gupta.

The harassment alleged in this case is more akin to that alleged in Johnson and Olson than in the cases defendants rely on. In Johnson, the plaintiff alleged 15 incidents of unwelcome and harassing conduct that occurred over a four-month period, including sexually explicit comments and gestures, “giving [plaintiff] unwanted massages, standing so close to [her] that his body parts touched her from behind, and pulling his pants tight to reveal the imprint of his private parts.” 234 F.3d at 506, 509. Olson involved allegations that the harasser, over a two and half month period, subjected the plaintiff to offensive and vulgar sexual comments several times a week, and touched her at least three times by attempting to kiss her on a single occasion and rubbing against her on two occasions. 130 Fed.Appx. at 388.

This case is also more analogous to Dees and Splunge v. Shoney’s, Inc., 97 F.3d 488 (11th Cir.1996), two cases defendants attempt to distinguish. [Doc. 80-2 at 8-9]. Dees involved allegations that defendants harassed plaintiff on a daily basis over a three-year period by making sexually explicit jokes, commenting on plaintiffs body, picking up plaintiff and squeezing her, multiple propositions for sex, repeated incidents of grabbing and slapping plaintiffs buttocks and leg, and one incident where one defendant ground his groin into plaintiffs buttocks while stating “look at that sexy mama, I could just eat you in that skirt.” 168 F.3d at 418, 422 n. 12. Similarly, Splunge involved allegations that four restaurant managers “grabbed [plaintiffs, commented extensively on their physical attributes, showed them pornographic photos and videotapes, offered them money for sex, favored other employees who had affairs with them, [and] speculated as to the plaintiffs’ sexual prowess.” 97 F.3d at 490.

As in these cases, the present case involves frequent instances of verbal sexual harassment coupled with unwanted physical touching. In sum, plaintiff has alleged facts sufficient to show that his work environment was objectively hostile and abusive. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 334 (6th Cir.2008) (finding male supervisor’s continual, crass requests for oral sex, regularly rubbing against plaintiff with his private parts, and touching or grabbing her “every time” they worked together was sufficiently severe or pervasive to establish a hostile work environment claim); McKinnis v. Crescent Guardian, Inc., 189 Fed.Appx. 307, 310 (5th Cir.2006) (finding that frequent unwanted touching, including touching on the breasts and thigh over a yearlong period, repeated demands for “hugs and kisses,” and other inappropriate behavior resulting in plaintiffs resignation, supported a hostile work environment claim); Taylor-Rogers v. Robb & Stucky, Ltd., 82 Fed.Appx. 974, 975 (5th Cir.2003) (finding evidence that co-employee, among other things, rubbed up against plaintiff on a daily basis and had simulated a sex act with her was “sufficient to create a genuine issue of material fact as to the severity and pervasiveness of the harassment”); EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 508-09 (6th Cir.2001) (jury could find that supervisor’s daily attempt to get close to employee and touching him whenever they were talking, stalking employee two or three times a day after employee was transferred, grabbing employee’s private parts constitutes severe, physically threatening, and humiliating discriminatory conduct); Williams v. Kansas City, 223 F.3d 749, 753 (8th Cir.2000) (finding conduct consisting of a supervisor making frequent calls to the plaintiff, inviting her to train him on the weekend, staring at her body, and making sexually charged comments about penis size sufficiently severe or pervasive); Hall v. Gus Const. Co., 842 F.2d 1010, 1012-14 (8th Cir.1988) (finding conduct involving crude names and other verbal abuse, requests to engage in sexual acts, offensive and unwelcome physical touching of thighs and breasts to be sufficiently severe or pervasive to support hostile work environment claim). Accordingly, the undersigned RECOMMENDS that defendants’ summary judgment motion be DENIED as to plaintiffs Title VII sexual harassment hostile work environment claim.

ii. Tangible Employment Action Sexual Harassment

Although defendants have made no specific argument with regard to plaintiffs tangible employment action sexual harassment claim, the Court wiil evaluate whether plaintiff has established a prima facie case since defendants have moved for summary judgment on plaintiffs sexual harassment claims. To establish a prima facie case of tangible employment action sexual harassment, plaintiff must show that (1) he belongs to a protected group; (2) he was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) he suffered a tangible employment action; and (5) there is a “causal link between the tangible employment action and the sexual harassment.” Orquiola v. Nat’l City Mortgage Co., 510 F.Supp.2d 1134, 1151 (N.D.Ga.2007), adopted at 510 F.Supp.2d at 1141 (citing Cotton, 434 F.3d at 1231). See also Lees v. Dynamic Educ. Sys., Inc., No. 3:06-cv-1106-J-33TEM, 2008 WL 821997, at *9 (M.D.Fla. Mar. 26, 2008) (quoting Virgo v. Riviera Beach Assocs., 30 F.3d 1350, 1361 (11th Cir.1994)).

As previously discussed, plaintiff has presented sufficient evidence to establish the first and third elements of his prima facie case. The fourth element is also satisfied as plaintiff maintains that he suffered a tangible employment action because he was terminated from his employment after he refused to give in to Pefanis’ sexual demands. [Doc. 1 ¶ 32]. Plaintiff has likewise satisfied the fifth element as there is a causal connection between the alleged harassment and his termination since it occurred within days of the last sexual proposition. Indeed, “ ‘temporal proximity between the harassment and a tangible employment action can give rise to a genuine issue of fact as to causation ....’” Orquiola, 510 F.Supp.2d at 1154 (quoting Cotton, 434 F.3d at 1232).

As for the second element, “[i]n order to constitute harassment ... [the] conduct must be ‘unwelcome’ in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.” Morgan v. Fellini’s Pizza, Inc., 64 F.Supp.2d 1304, 1309 (N.D.Ga.1999). “In determining whether conduct was unwelcome, the nature of the sexual advances and the context in which they occurred are to be viewed in light of the totality of the circumstances at issue.” Id. Plaintiff alleges that he was humiliated, embarrassed, and offended by Pefanis’ actions, and that he told Pefanis to stop, but Pefanis ignored his requests. [Doc. 115 at 225-31, 242-43, 264, 272-73; Doc. 83-4 at 7].

The Court “at the summary judgment stage is not entitled to assess the credibility of the varying accounts of the events that took place between [pjlaintiff and [Pefanis].” Morgan, 64 F.Supp.2d at 1310. Therefore, plaintiffs evidence is sufficient to establish a prima facie case that he experienced unwelcome incidents of sexual harassment and to survive defendant’s motion for summary judgment. Id. at 1309-10 (evidence offered by plaintiff that she was disturbed and offended by harassers’ conduct and asked them to desist sufficient to create a genuine issue of material fact as to whether the conduct was unwelcome). Accordingly, the undersigned RECOMMENDS that summary judgment be DENIED as to plaintiffs tangible employment action sexual harassment claim.

b. Retaliation

Defendants’ argument for summary judgment on plaintiffs retaliation claim consists only of a single sentence asserting that the claim “fails because [plaintiff] cannot present any evidence beyond his own self serving testimony, that the reasons [defendants] have advanced for the termination of [plaintiffs] employment are anything other than legitimate, non-discriminatory reasons such that [plaintiff] cannot meet the required pretext showing to avoid dismissal of this claim.” [Doc. 80-2 at 21], “Such an unadorned, and seemingly half-hearted, request for summary judgment hardly warrants consideration.” Donnelly v. Chicago Park Dist., 417 F.Supp.2d 992, 1000 (N.D.Ill.2006) (citing Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir.2005) (“court need not scour record to locate support for party’s argument; perfunctory or undeveloped arguments are waived”)). See also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (There “is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment.”). “This is especially the case here, where it is the [defendants] that bear[ ] the burden of demonstrating [they are] entitled to summary judgment.” Donnelly, 417 F.Supp.2d at 1000. Notwithstanding defendants’ perfunctory argument, the Court will address the merits of plaintiffs Title VII retaliation claim and whether he has shown pretext.

Defendants have failed to articulate in their motion a legitimate, non-retaliatory reason for the alleged adverse action, i.e., plaintiffs termination. However, based on the defendants’ statement of undisputed facts, the Court infers that defendants contend that plainti