Dates v. Frank Norton, LLC (190 F. Supp. 3d 1037, 2016)

VIRGINIA EMERSON HOPKINS, United States District Judge

MEMORANDUM OPINION AND ORDER

This action was filed on July 28, 2014, by the Plaintiff, Isha Dates, against her former employer, Defendant Frank Norton, Inc., doing business as Milo’s Hamburgers (“Milo’s”). (Doc. 1). The Complaint sets out counts for: sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) (Count One); disparate treatment in violation of 42 U.S.C. § 1981 (“Section 1981”) (Count Two); retaliation in violation of Title VII (Count Three); retaliation in violation of Section 1981 (Count Four); and the Alabama state law tort of dutrage (Count Five). All counts arise out of Dates’s employment with, and eventual termination by, the Defendant.

The case comes before the Court on the Motion for Summary Judgment filed by the Defendant (doc, 29), and the Defendant’s Motion for Sanctions Pursuant to Rule 11 of the Federal Rules of Civil Procedure , contained within its reply brief to the Motion for Summary Judgment (doc. 43). For the reasons stated herein, the Motion for Summary Judgment will be GRANTED in part and DENIED in part. Additionally, new arguments are improper if presented for the first time in a reply brief, as they were in this case. Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir.2005);. Distrib. Res. Mgmt., Inc. v. Peacock, No. 2:12-CV-00188-SLB, 2012 WL 2930787, at *2 (N.D.Ala. July 13, 2012). The Motion for Sanctions will be DENIED.

I. RULE 11 SANCTIONS

The Defendant argues:

If this Court disagrees that Milo’s has not met its summary-judgment burden of proof as to all of these claims, Milo’s respectfully submits that its failure to be able to do so is the direct result of Dates’ false testimony and bad-faith pursuit of her claims against Milo’s. As clearly demonstrated by the Declarations of Annetta Datcher and Cora Datcher, Dates unsuccessfully attempted to bribe and suborn perjury from them. She then compounded her potentially criminal actions by denying them under oath in a Declaration filed in response to Milo’s summary-judgment motion, thus perjuring-herself.

The irony should not be lost on this Court that Dates had not falsely testified about the Datcher’s accusations of ■bribery and suborning perjury (because she had not been confronted with them when under oath), until that Declaration was submitted to this Court on September 5,2105 [sic].

Such behavior by Dates, if proven true, is inappropriate, illegal and potentially criminal. It is overwhelmingly evident that Dates has filed this lawsuit in bad faith for an improper purpose, in violation of Rule 11 of the Federal Rules of Civil Procedure and well-established precedent.

(Doc. 43 at 7). The Defendant then continues, for the next 6 pages of its brief, to explain why Rule 11 mandates that Dates’s claims should be dismissed as a sanction for her alleged conduct. (Doc. 43 at 8-13).

Rule 11 provides:

A motion for -sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.

Fed. R. Civ, P. 11(c) (emphasis added). Not only is the 'motion not made “separately from any other .motion,” there is .no indication in the motion that the pre-filing service described in the rule occurred. The motion is DENIED.

II. STANDARD SUMMARY JUDGMENT '

Under Federal Rule of Civil Procedure 56, summary, judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled.to judgment as a matter of law. Fed. R, Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”) (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the. court of the basis for its motion and identifying those portions of the pleadings. or filings that, it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the mov-ant. Id. at 324, 106 S.Ct. 2548. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file— it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts aré material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only-disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Id. If the evidence presented by the non-movant to rebut the moving party’s evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505.

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce “significant, probative evidence demonstrating the existence of a triable issue of fact.” Id. (citation omitted) (emphasis added).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-mov-ant may no longer rest on mere , allegations; instead, it must set forth evidence of specific facts. Lems v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

III. FACTS

A. An Introductory Note

In its reply brief, the Defendant did not respond to the facts proffered by Dates in opposition to the Motion for Summary Judgment. This Court’s Uniform Initial Order states:

The reply submission, if any, shall consist of only the moving party’s disputes, if any, with the non-moving party’s additional claimed undisputed facts. The moving party’s response to the non-moving party’s additional claimed undisputed facts shall be in separately numbered paragraphs that. coincide with those of the non-moving party’s additional claimed undisputed facts. Any statements of fact that are disputed by the moving party must be followed by a specific reference to those portions of the evidentiary record upon which the disputation is based. All additional material facts set forth in the statement required of the opposing parties will be deemed to be admitted for summary judgment purposes unless controverted by the statement of the movant.

(Doc. 2 at 18-19) (emphasis in original). The Defendant’s failure to reply to Dates’s proffered facts means that all facts proffered by Dates should be deemed to be admitted for the purpose of ruling on the Motion for Summary judgment.

The Court also cannot ignore facts proffered in the Defendant’s initial brief in support of its motion, and Dates’s response to those facts. Dates admitted some of those fact and denied others. Of course the Court must, and has, resolved any eviden-tiarily-supported factual disputes in the light most favorable to the non-movant. This process sometimes creates an inconsistency with Dates’s- facts which are “deemed admitted.” Further, many of the facts proffered by Dates lack context, making them difficult to mesh with the Defendant’s facts. Also, some of Dates’s facts contain color words and argument, which are inappropriate to deem as “admitted.”

To resolve this problem, the Court first used the Defendant’s proffered facts, resolved (if disputed) in the light most favorable to Dates, as a starting point. Then, the Court has incorporated the Plaintiffs “deemed admitted” facts where appropriate, omitting argument and color words. If such incorporation was impossible because an inconsistency, was created, the Court ignored any “admission,” examined all of the evidence cited, from scratch, and cast the facts in the light most favorable to Dates.

B. Dates’s Hiring and the Managerial Hierarchy at Milo’s

Isha Dates began working as a cashier for the Defendant, at its Inverness location, on or about August 8, 2012. She reported to two Assistant Managers, Carmen Miles and Cornelius Jackson. Jackson reported to A1 Tomlin, the Area Manager, who reported to Robert Litton, the Operations Manager. Louise McDaniel was the head of Human Resources. McDaniel reported to the CEO, Tom Dekle.

Miles had the authority to take tangible employment actions. She could reduce the number of hours the employees worked. Miles also had the authority to suspend employees, which not only reduced their compensation, but was a form of discipline.

C. Policy Acknowledgments

At the time Dates was hired, she signed an “Employee Sign Off Sheet.” By doing so, she acknowledged that she read and understood the Defendant’s “WHAT EVERY MILO’S EMPLOYEE SHOULD KNOW” handbook, outlining company policy on the prevention of a hostile work environment, among other things. This document clearly states:

All employees are entitled to a hostile-free work environment. Bullying, threats, harassment, fighting and/or any other behavior that may cause or lead to a hostile work environment will not be tolerated and is immediate grounds for termination.

(Doc. 31-2 at 1).

' By signing her “Employee Sign Off Sheet,” Dates also acknowledged that she read and understood “Milo’s Hamburgers Policy on the Prevention of Sexual Harassment,” and the Defendant’s “Corporate Sexual Harassment Policy.” These documents clearly state that the Defendant: “[prohibits any form of harassment of our employees, whether such harassment is lawful or unlawful. It is never justifiable to harass one of our employees because. of the employee’s race, color, sex, sexual orientation, weight, religion, national origin, age, disability or any other reason.” (Doc. 31-4 at 1). The Defendant’s Handbook also states:

The Company will not tolerate you being harassed. You must not tolerate it either: If you believe you are being harassed, immediately report the matter to Louise McDaniel, Director of Operations/Marketing [...]. If you should feel uncomfortable reporting the problem to McDaniel, then report it to Tom Dekle [...]. The Management 'in the General Office will fairly and promptly investigate every sexual harassment complaint. Proven offenses will result in disciplinary action up to and including dismissal, and may lead to personal, legal and financial liability.

(Doc. 31-4 at 1).

D. Miles’s Alleged ■ Harassment of Dates

Dates claims that Miles sexually harassed her beginning in September of 2012, and continuing approximately every other day. The harassment was both physical and verbal, with physical harassment sometimes accompanied by verbal harassment. Dates testified that there were “plenty” of incidents of harassment. She could not recount each and every one of them, but described multiple specific examples.

1. The “Catching Eyes” Call

Dates claims her first incident with Miles. occurred on September 3, 2012, when Dates, from a car, called in^ to work to see what time her shift' started. Dates claims' that, during that' call, Miles told Dates.that the-other employees were telling each other that Dates and Miles had been “catching eyes.” Dates interpreted this statement as Miles “coming on” to her. During that same conversation, Dates told Miles, in explicit terms, that she was not interested in women. According to Dates, LaKosha Posey was in the car with her when this conversation occurred, and should have overheard it. (Doc. 34-5 at 2(167)). According to Dates, from that time on, Miles “started like rubbing up against me and saying little stuff like she wanted to take me out and... she would ■like rub against my breast.” (Doc. 39r7 at 193).

2.The Freezer Incident

Dates describes an incident with Miles which occurred in the Defendant’s cooler/freezer a few days after the phone, call between Dates and Miles. Dates says she bent over in the cooler to pick up some tea and Miles walked by her and rubbed up against Dates’s buttocks. Dates believed the contact to be both intentional and harassing because the cooler was not so small that the two had to come into contact, and because Miles looked back at Dates after she passed her by and smiled. When asked in her deposition if the smiles Dates received from Miles could be interpreted by others as something other than a “come on,” Dates testified: “the rest of the girls .. .they probably did take it that way...as a joke not knowing that, you know, I’m serious about it, and I don’t want to play like that because that’s not what I come out there for.” (Doc. 35-1 at 6(302)).

3. The Fry Station Incident

Dates described another incident which occurred at the fry station where Miles allegedly reached past Dates with a pair of tongs and her forearm brushed against Dates’s breast. Dates believed the contact was also intentional and harassing because Miles smirked at her when it happened, and because there was enough room at the fry station-so that contact should not have occurred. Dates claims Annetta Datcher was standing close by and saw the incident. (Doc. 34-6 at 6(223)). Dates acknowledged that the incident might have been caught on the restaurant’s interndl surveillance video, but that she never attempted to view or show anyone the tape. Dates also testified that this specific contact happened again, “several times.” (Doc. 39-7 at 218).

4. The Parking Lot Incident

Dates described another incident which allegedly occurred in the parking lot of the Defendant’s store in Inverness. Dates, Miles, LaKosha Posey, and Cora Datcher were all walking to their cars. According to Dates, Miles was walking behind her and said loudly: “I’m going to still take you out. I’m going to come down there.” (Doc. 39-7 at 235).

5.The Drive Through Incident

While they were working at the drive-through, Miles brushed up against Dates. Dates testified: “[S]he come by and brushed up against me. And it was mainly, you know, she was just either rubbing up against me or from behind. It was uncomfortable- [is] all I can say.” (Doc. 39-7 at 239).

' 6. Comments by Miles

Dates also stated:

[Miles] did get around to saying that she wanted to take me out and do all kinds — you know, I want to take you out and I love you, you got a big butt and all this stuff. And that was very uncomfortable coming from a woman, and I got a steady boyfriend. And I wasn’t comfortable with that at all.

(Doc. 39-7 at 163-164).

7. Witnesses

Cornelius Jackson, Assistant Manager at the Inverness Milos, stated in his declaration that he

heard/witnessed manager Carmen Miles . .make inappropriate sexual comments/gestures to Ms. Dates on several occasions at work. I heard her repeatedly ask Ms. Dates to go out with her after work, witnessed Ms. Miles follow Ms. Dates into the cooler area and out to her

(Doc. 39-10 at 1, ¶3). Although she denied telling Dates that she liked her because she was “big boned,” Miles testified that she could have made a comment that she liked big boned women. (Doc. 39-5 at 29).

Litton, in an interview he gave to the EEOC, was asked whether he had ever seen Miles touch Dates. Litton responded “[t]here was a good chance I did[.]” (Doc. 39-11 at 2). Miles agreed that Litton may have seen her touch Dates. (Doc. 39-5 at 63-64).

8. The Cut in Hours

After Dates had been subjected to the aforementioned conduct and indicated her lack of interest, her work.hours began dropping. Miles admits she changed Dates’s schedule and cut her hours. In her deposition, Miles denies retaliating against Dates, but testified:

Q. Okay. Did — well, were Ms. Datesfs] hours shortened during the time of her ■ employment at Milo’s?

A. Yes.

Q. Okay. Do you have an understanding why that occurred?

A. Yes.

Q. And what is'that?

A. Her hours were shortened because she said that I was working her six days and she wasn’t getting 40 hours. She . had four kids and she could not longer work at night.

' Q. Did she specify after what hour of the day she could no longer work?

A. She said she needed to be gone by 3 p.m.’ •

Q. Okay. Had she been working past 3 p.m. before that conversation?

A. Yes.

Q. Okay. And what did you do in response to that request by Ms. Dates?

A. I changed her schedule.

Q. Did you do so to retaliate against her for any reason?

A. No. (Doc. 39-5 at 54-55).

Dates states that.she probably did ask to work fewer nights. (Doc. 35-1 at 2(287)). She explained in her deposition that, from time to time, she had been asked to help out on Wednesday nights, but, when her managers began to regularly schedule her on Wednesdays, she asked them not to do that. (Doc. 35-1 at 2(287)).

E. Dates’s Complaints and the Defendant’s Investigation

1. Complaints to Jackson

Dates testified to telling Jackson “every time an incident [with Miles] happened.” (Doc. 39-7 at 218; 39-7 at 234). Dates claims Jackson told her to keep a written record of any incidents that made Dates uncomfortable, but she did not.

On September 3, 2012, the same day that Miles made the “catching eyes” comment to Dates, Dates complained to Jackson about the comment. She says that this complaint occurred shortly after the call, when Dates arrived at the store. Dates told Jackson because he was the only manager present. She told Jackson that she was “uncomfortable with what [Miles] had said.” (Doc. 39-7 at 177). Jackson, consistent with the Defendant’s policies, told Dates to complain to A Tomlin, and Louise McDaniel. Jackson did not address the issue with Miles, or her superiors himself. Dates declined to report the matter to management beyond Jackson at the time because she was afraid she might lose her job.

Sometime between September 8th and September 13th, Dates also complained to Jackson when Miles touched her in the cooler. (Doc. 39-7 at 210). Dates testified:

He asked me was I serious. Did she do it again? I said, CJ, yes. Why would I — I don’t have a reason to sit up here and, you know, lie about something that’s going on and I’m uncomfortable with, you know. And, I mean, and I told him, I was like, CJ, I’m going to have to do something or either, you know, I’m going to have to find another job because I don’t want to get fired by saying anything to her out the way, and, I mean.

(Doc. 39-7 at 210-211). Dates stated that, in this conversation with Jackson, she was concerned “not only about the way [she was] being treated, [but also] about the consequences of opposing it.” (Doc. 39-7 at 215).

Dates also reported to Jackson the incident in the parking lot where Miles stated she was going to take Dates “out,” (Doc, 39-7 at 236).

2. Complaints to Tomlin, McDaniel, and Dekle

After complaining to Jackson, Dates complained about the alleged harassment and cut in hours to Area Manager A1 Tomlin, and to Louise McDaniel, the Defendant’s Director of Operations and its Chief Human Resources Officer. (Doc. 39-7 at 278; doc. 39-7 at 294). She also complained to CEO Tom Dekle.

At first, she could not remember to whom she complained' first. (Doc. 39-7 at 278). She then stated “it was A1 [Tomlin] because he was, you know, he was at the store more so. It was him, then Ms. McDaniel.” (Doc. 39-7 at 278), Later, she testified that she spoke to Tomlin after she spoke with McDaniel. (Doc. 39-7 at 294).

a. Tomlin

Dates cannot remember the date of her complaint to Tomlin. (Doc. 39-7 at 278). She does remember that her complaint to Tomlin was in person, “one morning that [Dates] was coming in.” (Doc. 39-7 at 278). She did not remember whether she brought just one incident of harassment to his attention, or the harassment as a whole, but stated: “I know I did, talk to him and mention to him what was going on and about my hours being cut because that’s when my hours started dropping and stuff.” (Doc. 39-7 at 279). She then testified that she “was complaining about the sexual harassment and [her] hours.” (Doc. 39-7 at 280).

“[Tomlin] land of really didn’t want to hear it. He was trying to brush it off like it wasn’t nothing, like for me just to leave it alone.” (Doc. 39-7 at 275). The following exchange took place in Dates’s deposition:

Q. I get the impression from your testimony that it’s your belief that Mr. Tomlin, Al, kind of blew you off when you came to talk to him about Carmen?

A. And he did.

(Doc. 39-7 at 281-282). Dates later testified that Tomlin “really didn’t want to hear it. He . brushed [me] off.” (Doc. 39-7 at 293).

b. McDaniel

(1) The First Phone Call on September 27, 2012

Dates’s initial communication with McDaniel was by phone on September 27, 2012. (Doc. 39-7 at 295; doc. 39-7 at 304). Dates testified: “I told her what was going on about [Miles] sexually harassing me and about my hours, being cut.” (Doc. 39-7 at 295). Dates told McDaniel that Miles was “rubbing up against” her. (Doc. 35-1 at 7(306)). Dates also testified that she specifically used the words “sexual harassment” when speaking with McDaniel. (Doc, 35-1 at 7(306)). Dates told McDaniel that Dates had told Miles she was “not interested.” (Doc. 39-7 at 309-310).

Dates states that McDaniel told her to speak to Miles directly. (Doc. 39-7 at 295). The following exchange took place in Dates’s deposition:

Q. Okay. What did Ms. McDaniel tell you when you told her those things in the call?

A. She told me to talk to [Miles] myself. She was like, have you talked to [Miles]? And I. said, well, I did tell her to stop, that I wasn’t on that level... .And, you know, it was just like she wasn’t going to even try to deal with [Miles] because she didn’t say anything about it at the sometime [sic]. She told me to go and talk to [Miles], That’s just like add fuel to fire. I’m not going to do that, you know. And knowing me and this woman already having problems, you know, and it was just like — I don’t know.

(Doc. 39-7 at 307-308; see alsoáoc, 39-7 at 295 (“She told me to talk to [Miles].”)). McDaniel told Dates to call back if it ever happened again. (Doc. 39-7 at 308-309; 312) The Defendant admits that, following this Call, Dates’s hours were further reduced, and, within two days, Miles began again to touch and rub on Dates.

[Miles] had brushed up against her — that was her only statement — in the drive-through.” (Doc. 32-1 at 9(35)) (emphasis added), The following fact, proffered by Dates, was not disputed by the Defendant:

162, McDaniel admits that [] Dates specifically told her about Miles rubbing up against [] Dates’s buttocks. Ex. 7, 306/13-21; Ex. 9, 25/11-24.

(Doc. 39 at.18) (emphasis added).

(2) The Second Phone Call

Dates says she called McDaniel a second time on October 15, 2012. When asked what precipitated the second call, Dates stated: “Because once again, my hours were going down and she was still touching, rubbing, or whatever the word we’re going to use, she was — it didn’t stop like at all.” (Doc. 39-7 at 314). When asked why she waited two or three weeks [from September 27, 2012] to call McDaniel again, despite the fact that harassment was occurring “every other day” (doc. 39-7 at 314), Dates stated: “Because Ms. McDaniel was — because I called [CEO Tom Dekle] thinking that Tom was going to call me, and I didn’t hear anything from him.” (Doc. 39-7 at 315). Also, Dates testified that she had tried to call McDaniel before this time (and after the first call) but could not reach her.

Although Dates cannot specifically remember what she told McDaniel -in that second phone call, she knew that it was pertaining to sexual harassment and hours being cut. (Doc. 39-7 at 322). The following exchange took place in Dates’s deposition:

Q. Did she say anything different to you or what did she say to you?

A. I don’t remember what she said. All I know she wasn’t very happy about it. And, like I said, she act like she didn’t care, so, you know.

Q. Ma’am, in what way did she act like she was not happy about it and didn’t care?

A. I mean, because she just — the stuff that she was saying, I can’t remember, but I know whatever it was, it kind of made me upset because it felt like I was — the help that I thought that I would have from my job that I — I didn’t have it.

Q. Got you. What I’m asking for is, give me the evidence, give me the proof. What did she say or what type of things did she say to create that impression in you that you weren’t getting the help you were certainly entitled to?

A. I. mean, I can’t recall what she said, Mister. And, I mean, I just don’t remember what she said. But whatever she said, I know it made me feel as if my work didn’t count for nothing, like I’m just talking, you know, and it wasn’t anything like that.

(Doc. 39-7 at 324).

During this second phone call, Dates told McDaniel that Annetta Datcher was a witness to the harassment. (Doc. 39-7 at 275-276).

3. Dekle

The following facts, proffered by Dates in opposition to the Motion for Summary Judgment, were not disputed by the Defendant and are therefore deemed to be admitted:

176.[] Dates testified that “[Jackson] gave me Tom [Deklej’s number after I talked to Ms. Louise [McDaniel] and A1 [Tomlin] and all that stuff.” Ex. 7, 192/6-8.[]

177. [ ] Dates called Tom Dekle, Defendant’s CEO, several times. She first left him a voicemail (produced by Milo’s), on or about October 8, 2012, stating in pertinent part:

I need to talk to you about something that has been going on in the store. When you get my message, can you please please call me back, cause I been tryin’ to reach you for about a week, but I just got your number. So if you can please give me a call as soon as possible.. .Ex. 7, 315/1-21; 277/2-10; Ex. 9, 36/7-9.

178. [ ] Dates called Dekle a second time from her coworker LaKosha Posey’s telephone to see if he would pick up, but he did not answer or return her calls. Ex. 7, 317/2-23, 319/18-320/1.

179. CEO Dekle told McDaniel about the voicemails []. Ex. 9, 36/7-9 (‘Q.» • •Were you aware that she also left a voicemail for Mr. Dekle about having issues? A. • • • Yes/).

180. McDaniel testified that it was uncommon for crew members to call Mr. Dekle, Ex. 9, 36/10-15 [].

(Doc. 39 at 21-22).

F. The Investigation

Dates agrees that McDaniel immediately began her investigation after the first phone call, After either the first or second call from Dates, McDaniel immediately spoke to Annetta Datcher by .phone. McDaniel then set up interviews with witnesses. (Doc. 39-9 at 40).

1. Personal Interview with Annetta Datcher

McDaniel says she met with Annetta Datcher on October 16, 2012, who advised she had “never” seen Miles say or do anything inappropriate. Datcher’s recollection of that interview is consistent with McDaniel’s recollection and memorialization in her Investigation Summary Memorandum. Datcher further stated Miles was a “by the book” manager and expected everyone to follow policies and procedures, and when this did not happen, she professionally advised the employee she would take appropriate disciplinary action when needed. Datcher also stated that Dates had a problem with authority and frequently acted insubordinate at work, creating a disruptive environment. Datcher also advised McDaniel that she was friends with Dates but she “will not lie for even my friend to get someone in trouble.” (Doc. 32-1 at 11(42)).

2. Personal Interview with Lakosha Posey

McDaniel met with Lakosha Posey, who indicated she saw Miles brush up against Dates one time, several weeks before, at the front drink counter. Posey could not say if it was accidental or intentional, but she had never seen such action occur before the event or subsequent to it. Posey had also never heard anything inappropriate said between Dates and Miles.

3.Personal Interview with Sarah Rourke

Sarah Rourke, another of the Defendant’s employees, said she never saw or heard anything inappropriate between Miles and Dates.

4.No Interview with Carmen Miles or Other Potential Witnesses

The record contains a typewritten, un-sworn document, dated October 22, 2012, which is entitled “Summary of Investigation Regarding Isha Dates.” (Doc. 32-2 at 1). This document, apparently prepared by McDaniel, contains the following language: “I spoke with [Miles], and she assured me nothing inappropriate had happened. I talked with the other managers, including Area Manager, A1 Tomlin, and no one had ever witnessed anything - inappropriate. (Doc. 32-2 at l). Interview notes from the EEOC’s “On Site Investigation” interview with Miles recount that Miles states that she was not interviewed as part of the investigation of this incident. (Doc. 39-8 at 2).The Defendant admits that there were other employees who could have been interviewed, but were not.

5. Review of Surveillance Video

McDaniel and Tomlin reviewed. video footage from the restaurant to see if they could find video evidence of the conduct Dates complained about, but found none. As to what video footage she reviewed regarding these incidents, McDaniel testified that she and Tomlin

...looked at their scheduled ,[sic].of when they worked together because she could not give me any times. And, you know, you can imagine,with all that, there’s a lot of footage. But we randomly looked, through the times that they worked together focusing on that drive-through camera and not observing.

Q. So is it possible that since you were picking at random times that you missed the time that Ms. Miles was coming into physical contact with Ms. Dates?

A. Probably. It could be, sure.

(Doc. 39-9 at 44). The footage now no longer exists.

6. Final Meeting with Witnesses and Dates

Dates testified that, on October 22, 2016, McDaniel met with only her, Annetta Datcher, and Lakosha Posey, in the back of the Inverness Milo’s, in the corner, (Doc.- 39-7 at 331-332). Dates was the last one to speak with McDaniel. (Doc. 39-7 at 332, 341). Davis testified:

A. I believe it was after hours because I was actually in my car about [to] leave. Me and Kosha. She called Cora and talked to Cora, then she talked to Ko-sha. And she — I was the last one that she talked to.

(Doc. 39-7 at 329-330). “[S]he was telling me that if I said anything [to] [Lakosha] or Annetta or Cora about what we had talked about that I would lose my job.” (Doc. 39-7 at 330).

McDaniel assured Dates if she had any problems in the future to notify McDaniel immediately so she could investigate it. McDaniel further advised Dates that, if she could tell McDaniel the exact times of any recurrent behavior by Miles, the restaurant’s security video footage could be reviewed. McDaniel explained to Dates the justification for her reduction in hours, specifically her understanding that it was because Dates advised management 'she could not work nights.

Dates states:

And that’s when she was being sassy telling me what could we do to help— what can we do to make it better. I’m like, I just want her to leave me alone. I’m not asking to be moved. I’m not asking to be fired. I just want Ms. Miles to leave me alone. She was being mean about it like she was trying to intimidate me. And like I was just going to back up. She was basically trying to get me to drop the whole thing so it could be forgot about, and that’s how she was.

(Doc. 39-7 at 325). Dates testified that McDaniel “was basically saying that they were not agreeing with what I said and all this. She was basically telling me that I was lying and that they weren’t, you know.” (Doc; 39-7 at 333), Dates could not remember McDaniel using any particular word to imply that Dates was being untruthful, but she did remember “her saying is that what could we do to make this right like she just wanted me to forget about it.” (Doc. 39-7 at 333). Dates testified that she “told her yall can just tell Carmen [Miles] to leave me alone.’ ” (Doc. 39-7 at 334). McDaniel told her not to talk about the harassment or she would lose her job. Dates then told McDaniel “if we’re done, my lawyer will be contacting you.” (Doc. 35-2 at 3(330)).

The Defendant admits that Miles was never disciplined, remained the Assistant Manager at Dates’s store, and that, following Dates’s complaints to Defendant, the sexual harassment simply continued until Dates was fired,

McDaniel also met with Miles on October 22, 2012, and advised her the investigation had been finalized. McDaniel stated that she

reminded her as I would, you know, with anyone else that things can happen in the drive-through or anywhere in the store, even in the cooler or whatever, accidentally.' You just need to always apologize for that. So, because it can be, I’m sure, uncomfortable sometimes when you’ve got five people in that drive-through window.

(Doc. 32-1 at 14(54-55)). She additionally advised Miles that she should not retaliate against Dates and to treat her like all of the other employees. Miles .assured McDaniel there was no problem in doing so.

G. Dates’s EEOC Charge

On October 22, 2012, Dates filed an EEOC Charge. Dates attempted to persuade Annetta Datcher to ride with her, Cornelius Jackson, and LaKosha Posey to the EEOC office that day, in order to offer support for her charge. Datcher refused to go. In her declaration, Datcher states that she refused because:

Dates and Cornelius Jackson admitted to me that they were going to “scam” Milo’s with’ a false sexual harassment claim by Ms. Dates against Carmen Miles. In addition, Ms. Dates offered me a ‘portion of her settlement money if I would support her false 'allegations against Ms.' Miles. I declined- her offer as I judged it wrong and I was not going to lie for anyone, even a friend like Ms. Dates.

(Doc. 3Í-5 at 1, ¶10). Dates stated in her declaration:

I never told Annetta Datcher that we ■were going to “scam” Milo’s with a false claim of sexual harassment against Carmen. Miles, and I have never heard Cornelius Jackson make such a statement...-. I never offered Annetta Datcher any money to support my complaint of sexual harassment against Carmen Miles.

(Doc. 39-2 at 1, ¶¶3,4).

In her' EEOC Charge, Dates alleged “the store manager has felt on my buttock, my breast and at every -Opportunity that presents it’s self [sic], she will rub her body against mine.” (Doc. 1-3.) 'Dates further alleges that, “once I complained about being sexually harassed the store manager reduced my hours from at least 40 hours per week down to 24 hours per week, which ! protested.” (Doc. 1-3.)

Dates’s Charge was mailed to the Inverness Milo’s P.O. Box. Tomlin physically received the charge on December 18, 2012, when he did his periodic check of the store’s mail box. The following facts, proffered by Dates in opposition to'the Motion for Summary Judgment, were not disputed by. the Defendant ,and are therefore deemed to be admitted:

184. Out of frustration, [ ] Dates turned to the EEOC on October 22, the same day McDaniel told her the evidence did not support her allegations. Ex. 6. Milo’s learned of her EEOC filing the very day she filed, not after.it later terminated her on November 21.

185. On October 22, [Dates] explained to her coworker Annetta Datcher that she was late to work because she was coming from filing an EEOC charge. Ex. 7, 361/22-362/9.

186. [] Datcher has stated under oath that she passed this information on to Area Manager A1 Tomlin supervisor that same day, and that Assistant Manger [sic] Cornelius Jackson was already aware of her filing, because he had advised her to file. Def s Ex. 8.

187. Someone who wanted to conceal the fact that Defendant knew about Dates’[s] filing the day it was made, not after she was terminated, prepared a declaration for Annetta Datcher to sign. Typewritten paragraphs 7-8 read as follows:

7. I understand that Isha Dates testified in her deposition that I told A1 . Tomlin and, Cornelius Jackson that she had filed a charge with the EE.OC on the day that she filed it.

8. However, this testimony is not truthful, as I did not tell Mr. Tomlin or Mr. Jackson that Ms. Dates filed a charge with the EEOC. Def.’s Ex. 8.

188. However, [] Datcher has stricken through the name “Cornelius Jackson,” and handwritten on the face of the Declaration:

I told A1 Tomlin but I didn’t have to tell Cornelius Jackson cause [sic] he was the one telling her what to do! Def.’s Ex. 8.

(Doc. 39 at 23-24).

H. The Defendant Tried To Find a Reason To Fire Dates

The following fact, proffered by Dates in opposition to the Motion for Summary Judgment, was not disputed by the; Defendant and is therefore deemed to be admitted:

175. Milo’s became fed up with [] Dates’s complaints. McDaniel instructed Milo’s supervisors to look for a pretext to terminate [] Dates. Jackson states:

I was present on a phone meeting with Ms. McDaniel, area manager A1 [Tomlin],... Carmen Miles, and area manager Rob [Litton], where Ms. McDaniel said we should find any little thing we can on Isha [Dates] to get rid of her.

There was a second meeting a few weeks later with myself, Carmen, Al, and Rob to follow up if we had found anything to fire Ms. Dates for. After this meeting, I advised Ms. Dates to call the owner directly. Ex. 10 at 6-7.

(Doc. 39 at 21).

I. The Failure To Follow Company Policy

If a manager saw physical touching occur in the workplace, the Defendant’s sexual harassment policy required them to report it to McDaniel or Dekle. Litton admitted that Miles’s statement about “big boned women,” as well as Miles’s making contact with Dates’s breast, would violate the Defendant’s sexual harassment policy. (Doc. 39-1 at 35-36). McDaniel admitted that she never received a report from Litton about Miles touching [ ] Dates.' (Doc. 39-9 at 51).

The follow facts, proffered by Dates, were not disputed by the Defendant and are therefore deemed to be admitted:

155. McDaniel.. .had herself failed to follow Defendant’s sexual harassment policy: using her work email account, she forwarded an email of “Very Brave Man Jokes” containing extremely offensive sexist “humor” including:

3 — Why is the space between a woman’s breasts and her hips called a waist?

Because you could easily fit another pair of tits in there_

6 — What do you say to a woman with 2 black eyes? Nothing, she’s been told twice already.

7 — If your wife keeps coming out of the kitchen to nag at you, what have you done wrong?

Made her chain too long

See Ex. 13, Email from Louise McDaniel to Jeff Morrison.

156. At her deposition, McDaniel admitted that the jokes in the email would violate Deféndant’s sexual harassment policy if spoken aloud. Ex. 9, 64/15-65/5. In other words, the person charged with enforcing Defendant’s purported anti-harassment policy was violating that policy-

(Doc. 39 at 16-17).

J. Dates’s Admissions that Miles’s Alleged Harassment Was Not Motivated by Race

Dates was asked if she thought Miles sexually harassed her because she was African American. Dates responded, “No.” Dates was asked if she had any evidence to support a conclusion that the Defendant is discriminatory toward African Americans. Dates responded, “No.” Dates was asked if she felt that she would have been harassed if she were white. Dates responded that there would .have been no difference in the harassment,

K. Dates’s Termination on November 21, 2012

Dates’s termination on November 21, 2012, arose from an incident several days before, when Dates allegedly “choked” another employee, Sarah Rourke. On that date, Dates and her co-workers and friends, LaKosha Posey and Cora Datcher, were outside the Inverness Milo’s. Dates was attempting to “swap hours” with- another employee. Tomlin instructed Dates, Posey, and Datcher to return to work and Dates was informed that Rourke “snitched” on them to Tomlin.

Annetta Datcher has stated in her declaration that she was present on “numerous occasions” prior to Dates’s termination when Dates called Rourke a “snitch.” (Doc. 31-5 at 2, ¶13). Datcher also states that Dates also threatened to “whip her-ass,” referring • to Rourke, if she met Rourke outside of work. Id. 'Dates testified that she never called Rourke a “rat” pr a “snitch” more than once. (Doc. 39-7 .at 412). In her declaration, Dates states that she “never threatened to ‘whip her ass’ if I caught Sarah Rourke out of work.” (Doc. 39-2 at 1, ¶5).

Further, it is admitted that Dates never touched Rourke, but merely made a choking gesture with her hands near her neck. (Doc. 39-7 at 392). When asked in her deposition if that gesture could have been interpreted as a threat, Dates testified: “I don’t want to say. I’m just going to say horseplay and leave it at that. I know it was, a joke. It was no harm meant by it.” (Doc. 39-7 at 396). Regardless, it is undisputed that the group was joking amongst each other, and that Sarah Rourke was laughing. Rourke admits that coworker Cora, Datcher called her a “snitch” as well. LaKosha Posey also . joked to Rourke that she was a “snitch.”

Rourke’s co-worker, Miranda Smith, the only other eyewitness to the alleged choking incidents brought it to the attention of management. Smith informed her immediate supervisor, Miles, who then informed Tomlin. Tomlin notified his immediate supervisor, Litton, about this incident. It was Litton’s responsibility to investigate disciplinary issues and ensure that all policies and procedures were followed correctly. It is undisputed that Miles, Tomlin, and Litton were all part of the conference call where McDaniel said that they should find a reason to fire Dates.

Litton began his investigation by contacting Rourke, who confirmed that Dates put her hands around Rourke’s throat and told her “don’t snitch on me again.” Litton testified that Rourke “was obviously scared,” based on her statements, body language and demeanor. (Doc. 30-1 at 109-110).’ Still, Rourke continued to work with Dates in the days after this incident. Litton then met in person with Smith, and secured written statements from Rourke and Smith. The internal security camera footage of

this incident was also reviewed, but it no longer exists.

Tomlin and Litton- confronted Dates about the incident on November 21, 2012. In that meeting, Dates denied ever touching Rourke, but agreed that she did gesture like she was choking her. (Doe. 33-2 at 19). Litton testified:

She said that she had put her hands around Sarah’s neck, but was not going . to choke her. But she had said she had put her hands around her. neck and that’s when I said that that was, you know, totally inappropriate behavior that was. threatening, that we — you know, I told her, I said, I’ve looked at the video, you know, I’ve got the statements from a witness and based on that, you know, I’m going to have no choice but to terminate your employment due to the guidelines that we have posted that we have all employees sign.

Q. (BY MR. PIERCE:) You’re referring to Plaintiff’s Exhibit 2?

A. Correct.

Q. The hostile work environment policy?

A. Correct.

(Doc. 30-1 at 114).

L. Litton’s Reasons for the Termination and the Destruction of the Video Footage of the “Choking”

■■ The following facts, proffered by Dates, were not disputed by the- Defendant and are therefore deemed to be admitted:

196. Litton testified he intentionally allowed the video of those events to be overwritten:

■ Q: So at the time you told her it was based on the video, could you have taken actions then to save the video?

A. Yes.

Q. And you chose not to?

A. Yes. Ex. 1,29/1-29/6.

197. At his deposition, Litton [testified]:

' Q. So the only record we ' have currently in this deposition of what happened in that video is based on your untrained interpretation of some other people in the video?

A. Correct; But my decision wasn’t made based on the video.

Q. But you told Ms. Dates that it was based on the video?

A. Yes.

Q. So why did you tell Ms. Dates it was based on the video if it- was not , based on the video? .

A. Because she had already admitted to doing it. Ex. 1, 27/20-28/20.

199. Ultimately Milo’s provided four separate explanations for terminating [] Dates: horseplay, what it saw on the video (the expression of a coworker), what [ ] Dates admitted, and violation of Milo’s anti-harassment policy.

200. Litton destroyed the video about two weeks after he viewed it. Ex. 1, 19/22-21/3. He knew [ ] Dates had com- ,. plained about Miles sexually harassing . her. Id. 21/4-15,23/10-14,29/1-6. .

(Doc. 39 at 25-27).

Dates cannot provide any examples of an employee putting their hands around another co-employee’s throat accompanied by a verbal threat. Tomlin and Litton both testified that any such conduct, if brought to their attention, would result in termination. Dates even agreed that employers should not tolerate threatened violence in the workplace.

Dates testified that her perspective as to the appropriateness of her conduct towards Rourke could be very different if she had been on the receiving end. (Doc. 30-1 at 43).

M. The Unemployment Compensation Proceedings

Dates filed for and was denied unemployment compensation after she was fired by the Defendant. (Doc. 33-3 at 2). The reason for Dates’s disqualification was that the alleged “choking” incident “constitutes misconduct committed in connection with work.” (Doc. 33-3 at 2). Dates appealed, and a telephonic hearing was held. Dates testified during her UC telephonic hearing that she never physically touched Rourke, and that Rourke would testify to that. Instead, she claimed to have merely hugged Rourke after putting her hands near Rourke’s throat. After the hearing, Administrative Hearing Officer Linda F. West reversed the initial determination, and determined that Dates .had merely tried to “hug” Rourke, and that “the incident of the claimant hugging an employee was [not] an act of misconduct.” (Doc. 33-3 at 4, 7). That reversal was affirmed by the Board of Appeals. (Doc. 33-3 at 14).

The Defendant appealed to the Circuit Court of Talladega County, Alabama. (Doc. 33-4 at 1). Circuit Judge Julian M. King held a trial de novo on the matter and then issued a written order finding, in pertinent part:

6....that Dates subjected Rourke to physical contact and clearly threatened her at the work place. Dates bulliéd and harassed Rourke and Dates committed misconduct at her workplace as a result of these actions.

8. This Court specifically finds that Dates engaged in violent and threatening acts directed specifically towards Rourke who was a co-employee. Her . action, clearly amounted to employee misconduct and was a clear violation of company policy that justified termination of employment. These acts, also amount to harassment that also justified termination of employment.

9_The actions of Dates against Rourke in this case... even rise to the level of the elements of what the Alabama Legislature says is harassment in the criminal code. The Court finds that Dates intended to harass, annoy and/or alarm Rourke and subjected her to physical contact in the neck and throat area. Threats were made that were verbal that escalated to carrying out the intent by the physical contact. Rourke as a reasonable person was the target of the threats and testified that she felt threatened and was fearful of Dates.

10. ... The Court finds that' ... Dates[ ] in not entitled to' unemployment compensation benefits because she committed misconduct that amounts to disqualification of benefits in accordance with Title 25, Chapter 4, Section 78(3)(a). ■ (Doc. 30-3 at 4-5).

N. Dates’s Post-Termination Actions

Dates filed her second EEOC Charge on November 27, 2012.

Cora Datcher states in her declaration that, as early as November 2012, and as recently as January 2013, Dates offered her a portion -of her settlement money if Datcher would- support her false allegations against Miles. (Doc. 31-6 at 1, ¶10). Datcher recalls declining to accept Dates’s offer despite the fact that Dates has made that offer of money to “go against Milo’s” three or four times. (Doc. 31-6 at 1, ¶10). Dates states in her declaration: “I never offered Cora Datcher any money to .support my complaint of sexual harassment against Carmen Miles, nor did I ever offer her any money to act as a witness or to ‘go against Milo’s.’” (Doc. 39-2 at 1, ¶6).

The following facts, proffered by Dates in opposition to the Motion for Summary Judgment, were not disputed by the Defendant:

201. [ ] Dates never stopped challenging the retaliatory and discriminatory firing. On November 29, 2012, Dekle received another voice message, which he produced, telling him “there are some serious things going down in your store.” Ex. 14, Ex. 15.

202. McDaniel, Head of HR, also1 engaged in spoliation of evidence, which she conceded “probably” showed Miles was touching Dates.

203. While Sara Rourke was still attending high school (Ex. 4, 32/2-13), Milo’s gave her an affidavit to sign which falsely stated that [] Dates had “attempted to persuade [her] to change [her] story'. .. so that Ms. Dates can receive unemployment, but I have refused to do so, because it would be untrue....” Ex. 3. During the unemployment proceedings, Milo’s offered the affidavit.

204. Milo’s had significant leverage over its student employees. As Rourke acknowledged, in her senior year of high school when she worked for Milo’s, “I was getting class credit.. .1 had to do well to get a good grade.” Ex. 4, 52/5-7.

205. Rourke testified:

Q. Did you know ahead of time that they were creating this affidavit before they brought it to you?

A. No.

Q. Do you remember where you were when they brought you the affidavit? A. I was at work. Ex. 4, 32/16-23.

206. Rourke admitted at her deposition that she... had lied under oath in her affidavit: “No, Ms. Dates never spoke to me about changing my story,” Ex. 4, 36/15-18.

207. Annetta Datcher, Cora Datcher and Lakosha Posey were 16 years old when [ ] Dates was terminated. Defendant has done everything it can to coerce them into recanting statements, or giving perjured testimony, which is highly probative of guilty knowledge.

208. Annetta Datcher was working at Milo’s when [ ] Dates was deposed. Def s Ex, 8 at 15. In an affidavit which was written for her, she has come forward now, for the first time-coincidentally just prior to Defendant’s motion-to say that [ ] Dates offered her money to implicate Miles. Id. at 10.

209. In that affidavit she crossed out the testimony scripted for her, and stated that she told A1 Tomlin [ ] Dates had filed an EEOC charge the day she filed, and that Assistant Store Manager Jackson was already aware of it. Def s Ex. 8.

210. Cora Datcher also came forward unexpectedly, just before Milo’s moved for summary judgment, and accused [ ] Dates of offering her money to lie about Miles back in 2012. Def s Ex. 9 át 10. In her affidavit, she recants a previous written statement she made in 2013, • shortly after [] Dates’s termination, in which she stated that - E ] Dates never touched Rourke. Id. 3. She spends much of four paragraphs denying that Milo’s pressured her into lying, claiming her statements are voluntary, notwithstanding that she still works at Milo’s. Id. 6, 8, 9,11.

211. Milo’s also drafted an affidavit for LaKosha Posey, in which she coincidentally recants, for the first time, the written statement she provided in February 2013, in which she said that Miles verbally and physically harassed [] Dates on “numerous occasions.” Def s Ex. 10 6, 8. Like Annetta Datcher, she had to insert a denial of the testimony scripted for her. Id. at 5.

212. [] Dates’s alleged offer to bribe Annetta and Cora Datcher,. and request for a written statement. from LaKosha Posey, supposedly occurred before [ ] Dates was terminated in November 2012. Nonetheless, [] Dates was not asked about any of these allegations at her deposition in June 2015.

(Doc. 39 at 27-29).

IV. ANALYSIS

A. Alleged Violations of 42 U.S.C. § 1981 — ounts Two and Four

Summary Judgment is appropriate as to Dates’s race discrimination claims in Counts Two, and Four, which are brought pursuant to 42 U.S.C. § 1981. (“Section 1981”). “‘[Sjection 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts.’” Blow v. Virginia Coll, 619 Fed.Appx. 859, 861 (11th Cir.2015) (quoting Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir.1999)) (emphasis added). In her brief, Dates makes no argument that any actions were taken against her because of her race. Further, Dates either admits, or has no evidence of, racially motivated harassment or retaliation. Dates’s claims in Counts Two and Four will be dismissed with prejudice.

B. Title VII Hostile Work Environment Claim — Count One

Dates claims that the Defendant “engaged in illegal, intentional discrimination on the basis of sex and race, by creating a hostile work environment.” (Doc. 1 at 17). As noted in the Court’s discussion of the Section 1981 claims, Dates has presented no evidence, or argument, that she was discriminated against based upon her race. To the extent that Count One makes such a claim, summary judgment is appropriate. Dates does present evidence and argument regarding her claim that she was subjected to a hostile work environment based upon sex. The Court will now address that claim.

The Eleventh Circuit has stated:

“To establish a hostile work environment claim under Title VII, the plaintiff must show that the workplace is per- . meated.with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the condi- , tions of the victim’s employment and create an abusive working environment.” Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir.2012) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)) (internal quotations omitted). Specifically, to prove a prima facie case, a plaintiff must show that: (1) she belongs to a protected • group; (2) she was subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic of the employee; (4) the harassment was sufficiently severe’ or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) the employer is responsible for such environment under either a theory of vicarious or of direct liability. Edwards v. Prime, Inc., 602 F,3d 1276, 1300 (ilth Cir.2010). To make out a sex-based hostile work environment claim, one need not show that the environment was hostile in a sexual manner, but merely that it was hostile because of the plaintiffs gender. See, e.g., Ornale v. Sundowner Offshore Sews., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L,Ed.2d 201 (1998) (holding that a woman may establish non-sexual, gender-based harassment by showing that, the plaintiff is harassed in sex-spe- . cific and derogatory terms as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace).

The requirement that the harassment be “severe or pervasive” contains an objective and subjective element. The behavior must result in an environment “that a reasonable person would find hostile or abusive,” and one which the victim “subjectively perceive[s].. .to be abusive.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir.2002). In evaluating the severity of the harassment, we consider the totality of the circumstances, including the frequency and severity of the conduct, whether the conduct is physically threatening or humiliating or a mere offensive utterance, and whether the conduct unreasonably interferes with the employee’s job performance. Id. Instances of alleged harassment are considered cumulatively rather than in isolation. Reeves v. C.H. Robinson Worldwide, Inc., 594 F,3d 798, 808 (11th Cir.2010).

Clark v. S. Broward Hosp. Dish, 601 Fed. Appx. 886, 898-99 (11th Cir.2015).

1. The Severity and Pervasiveness of the Conduct

The Defendant attacks only the fourth element of Dates’s claim, arguing only that the

allegations of statements and contact between Miles and [Dates] (supra, ¶ 13-16, 23-34, and elsewhere above), simply do not rise to the level of severity or frequency required by well-established case law. See e.g. Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501 (11th Cir.2000); Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238 (11th Cir.2004); Leeth v. Tyson Foods, Inc., 449 Fed.Appx. 849 (11th Cir.2011) (unpublished opinion); Guthrie v. Waffle House, Inc., 460 Fed-Appx. 803 (11th Cir.2012) (unpublished opinion).

(Doc. 30 at 49). It continues:

This is especially true in light of the testimony from Annetta Datcher, Cora Datcher [sic] and LaKosha Posey, Dates’[s] own witnesses, that they did not see nor hear any statements or actions that could be interpreted as sexual harassment during them entire tenure of employment with Dates. (Ex. 8, ¶ 3-6; Ex. 9, ¶ 7; and Ex. 10, ¶ 3,6-7, 9-14.). Finally, it is undisputed that [the Defendant] complied with its duty to conduct a prompt and thorough investigation of Dates’fs] sexual harassment claim and found no evidence to support it.

(Doc. 30 at 50). Other than to generally set out the law regarding hostile work environment claims (doc. 30 at 48-49), this is the Defendant’s only argument on this claim in its initial brief.

The first paragraph of the Defendant’s argument fails to provide any support for its motion. As the Eleventh Circuit has noted:

A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record that demonstrate an absence of a genuine issue of material fact. “Only when that burden has been met does the burden shift to the non-moving party to demonstrate there is indeed a material issue of fact that precludes summary judgment.”

Mosley v. Alabama Unified Judicial Sys., Admin. Office of Courts, 562 Fed.Appx. 862, 864 (11th Cir.2014) (quoting Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991)). The E