For the reasons discussed below, I RECOMMEND that Defendant's Motion for summary judgment be GRANTED in part and DENIED in part; that Defendant's Motion for dismissal as a sanction for spoliation be DENIED; and that Defendant Hart be DISMISSED from this action. I also ORDER that Defendant's Notice of Objection to Plaintiff's Declaration be SUSTAINED in part and OVERRULED in part.

Carroll filed his Complaint on March 13, 2014. [Doc. 1]. After waiving service, [Doc. 3], ATA moved to dismiss the Complaint for failure to state a claim and for a more definite statement. [Docs. 5, 6]. After briefing of the motion to dismiss,[1] I issued a Report and Recommendation that ATA's motion to dismiss be granted with respect to Plaintiff's claims for Title VII retaliation and for battery under state law, and denied with respect to Plaintiff's other claims. [Doc. 11]. I also recommended that the motion for a more definite statement be denied as moot. [Id.].

The district court subsequently overruled ATA's objections and adopted my Report and Recommendation. [Docs. 13, 14]. The district court also issued an order to show cause why defendant Hart, who had not appeared and as to whom service was not evident, should not be dismissed from this action. [Id.]. No further action has been taken in response to that order to show cause, which I address in Section II.D.2.b below.

ATA filed an Answer to the Complaint. [Doc. 16]. The parties thereafter engaged in discovery, including a dispute over the sufficiency of Plaintiff's responses to ATA's request to produce. [Docs. 34, 35]. Discovery closed on June 3, 2015. [Doc. 33 & May 8, 2015 Order].

ATA timely moved to dismiss due to spoliation, or in the alternative for summary judgment, on July 16, 2015. [Doc. 38]. Plaintiff filed his response on August 24, 2015, and ATA filed its Reply on September 8, 2015. [Docs. 40, 42]. ATA also that day filed a Notice of Objection to Plaintiff's Declaration Under Oath (“Objection”) [Doc. 43] in support of his opposition to summary judgment, to which Plaintiff has not responded. The Motion and the Objection are ripe for review.

*2 As explained in Section IV below, I find that the “extreme sanction” of dismissal is not warranted for the conduct ATA describes in its motion to dismiss. I therefore first consider Defendant's Motion for summary judgment, despite ATA requesting it in the alternative, for ease of comprehension. To consider that Motion, I must also weigh ATA's objection to Carroll's declaration, which underpins many of his asserted material facts.

Local Rule 56.1 of the Northern District of Georgia provides that a party moving for summary judgment must include “a separate, concise, numbered statement of the material facts to which the movant contends there is no genuine issue to be tried.” LR 56.1B(1), NDGa. The Court deems the movant's facts admitted unless the opposing party directly refutes the facts with citations to evidence (including page or paragraph number) or law, states a valid objection to the movant's evidence, or points out that the movant's citation does not support the movant's fact or that the movant's fact is not material or otherwise has failed to comply with the provisions set out in Local Rule 56.1B(1). LR 56.1B(2)(a)(2). The opposing party may also submit a statement of additional facts which he contends present a genuine dispute of material fact. LR 56.1B(2)(b).

Defendant ATA filed a statement of undisputed material facts. [Doc. 38-2]. Plaintiff filed both a response to Defendant's statement of undisputed material facts and his own statement of additional material facts. [Docs. 41, 40-2]. Defendant has also filed a response to Plaintiff's statement of additional material facts.[2][Doc. 42-2]. Where Plaintiff has neither refuted nor stated valid objections to the material facts as set forth in Defendant's statement, those facts are deemed admitted by operation of law. LR 56.1B(2); Reese v. Herbert, 527 F.3d 1253, 1267-69 (11th Cir. 2008).

In addressing the merits of Plaintiff's claims and of Defendant's Motion for summary judgment, I have not simply relied on the statements of material facts and objections thereto, but have “reviewed the evidentiary materials submitted ... to determine ... whether there are genuine issues of material fact to be tried.” Hall v. Graham Packing Co., L.P., No. 1:08-cv-2424-TWT, 2010 WL 481214, at *3 (N.D. Ga. Feb. 3, 2010). Accordingly, I draw facts from the statements of material facts as well as from the record evidence. I have excluded assertions of fact that are immaterial or presented as legal conclusions, and have excluded assertions of fact unsupported by a citation to evidence in the record or asserted only in the party's brief and not in a statement of facts. See LR 56.1B. I observe that while I have reviewed the record, including the parties' filings, to determine whether genuine issues of material fact exist to be tried, I need not “scour the record” to make that determination. Chavez v. Credit Nation Auto Sales, 49 F. Supp. 3d 1163, 1179 (N.D. Ga. 2014) (adopting report and recommendation) (citation and internal quotation omitted).

*3 Summary judgment is proper when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant carries its burden by showing the Court that there is “an absence of evidence to support the nonmoving party's case.” Celotex v. Catrett, 477 U.S. 317, 325 (1986).

“Only when that burden has been met does the burden shift to the nonmoving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The nonmovant is then required “to go beyond the pleadings” and to present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; Fed. R. Civ. P. 56(c). “Mere conclusions and unsupported factual allegations are legally insufficient to create a dispute to defeat summary judgment.” Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989).

Federal Rule of Civil Procedure 56 mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which he or she will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Id. at 322-23.

In deciding a motion for summary judgment, the Court must view all evidence and draw any factual inferences in the light most favorable to the nonmoving party. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). But “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). The requirement to avoid summary judgment is that there be no “genuine issue of material fact.” Id. at 248 (emphasis in original). Resolving all doubts in favor of the nonmoving party, the Court must determine “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Id. at 252.

In light of the foregoing rules and summary judgment standard, I find the following facts for the purpose of resolving Defendant ATA's Motion for summary judgment only. My findings of fact and analysis of the parties' arguments regarding summary judgment are based in part on my ruling on ATA's Objection to the Declaration of Reginald Carroll [Doc. 40-1], which I analyze in Section III infra.

Reginald Carroll is an African-American male. [Doc. 40-2, Plaintiff's Statement of Material Facts (“PSMF”) ¶ 1]. Carroll worked for ATA as a part-time merchandiser from approximately January 11, 2013 until April 24, 2013. [Doc. 382, Defendant's Statement of Material Undisputed Facts (“DSMF”) ¶ 1]. ATA's merchandisers are assigned specific stores and instructed as to the frequency of their visits to each store. [DSMF ¶ 2]. Upon arrival at a store, a merchandiser is expected to retrieve a multi-page action plan listing the product that should be included in the in-store display. The merchandiser is expected to work independently and follow the instructions on the action plan for maintaining the display. [DSMF ¶ 3].

*4 Plaintiff applied to ATA online. [DSMF ¶ 5]. Carroll had other full-time employment and regarded the ATA position as a supplemental income source. [DSMF ¶ 6]. Carroll was interviewed in person by Donna Hart, a Caucasian female, who worked for ATA at that time as a route supervisor. [DSMF ¶ 7, Plaintiff's Response to Defendant's Statement of Material Undisputed Facts (“Pl.'s Resp.”) ¶ 7, PSMF ¶ 5][DSMF ¶ 8]. Hart was the person who notified Carroll that he was hired, and who would train and supervise him throughout his employment with ATA. [PSMF ¶ 4; DSMF ¶¶ 19-21].

The merchandiser is expected to enter time worked into ATA's electronic timekeeping database, using unique logins provided by a human resources employee of ATA for this purpose. [DSMF ¶¶ 4, 10]. Carroll also used his unique logins to complete and electronically sign his initial hiring paperwork online using a computer at his home, a process referred to as “onboarding.” [DSMF ¶ 11]. To complete the onboarding paperwork, Carroll reviewed ATA's documents and clicked to accept them electronically. [DSMF ¶ 12]. Carroll was under no time pressure, no one from ATA was with him when he completed the onboarding paperwork online, and he did not have any questions about the onboarding documents when he voluntarily signed them. [DSMF ¶¶ 11, 13].

The onboarding paperwork included Carroll's acknowledgment of receipt of ATA's sexual harassment policy (the “Harassment Policy”) along with instructions on reporting sexual harassment within ATA. [DSMF ¶ 14]. The Harassment Policy stated that ATA prohibited sexual harassment; instructed employees to report harassing conduct as soon as possible to the ATA human resource manager or general manager; included the telephone number for ATA's human resource manager; and pledged appropriate disciplinary action and anti-retaliatory action following an investigation. [DSMF ¶¶ 15-17]. Carroll had contact information for Hart's supervisor (thus, Carroll's supervisor's supervisor), Stephanie Doty (“Doty”), via emails that he received in the course of his ATA employment. [DSMF ¶ 18].

When entering time into ATA's electronic database, merchandisers like Carroll were to log their time either as target time, which represents the time ATA suggests or estimates it should take to service a store, or as miscellaneous time, which is used to record the amount of time a merchandiser works in excess of target time. [PSMF ¶ 6]. After servicing a store, Carroll would use his unique logins to log on to ATA's electronic timekeeping database and enter the code for the store he just serviced. The field for target time would populate automatically with the amount of time ATA estimated was needed to provide service, while the merchandiser was to enter additional time in the miscellaneous time field. [DSMF ¶¶ 22, 23].

One reason ATA instructed merchandisers to enter target time and miscellaneous time separately was to identify those merchandisers who would benefit from additional training to improve their efficiency. [DSMF ¶ 26]. Carroll was told to focus on accuracy, not speed, when performing his job duties, though ATA also expected his efficiency to improve over time. [DSMF ¶¶ 25-26, Pl.'s Resp. ¶¶ 22, 25-26, PSMF ¶ 8]. Carroll ordinarily would take longer to service a store than ATA estimated. [PSMF ¶ 7]. ATA had Carroll perform additional training sessions called “eagle reviews,” during which Hart would personally observe and participate in Carroll's performance of his duties. [DSMF ¶ 26-27].

*5 Carroll entered all work time himself, including miscellaneous time. [DSMF ¶¶ 23-25]. To be paid out, that time needed approval by someone higher-ranking than Carroll. [DSMF ¶¶ 28, 33]. Hart told Carroll that she was responsible for approving and reviewing time entries and could alter the time that he entered, which he believed to be true. [PSMF ¶¶ 9-10]. Doty, however, actually had the authority to approve Carroll's time entries, and Hart did not.[3] [DSMF ¶¶ 33-34]. Carroll could return to time entries at a later date to verify that they had been approved, which he did, finding that none were disapproved. [DSMF ¶ 28]. That time entries were approved does not mean they were not altered prior to approval; however, Doty never altered any time entry by Carroll. [DSMF ¶¶ 28, 33, Pl.'s Resp. ¶¶ 28, 33].

Carroll contends that Hart altered his time entries, resulting in the non-payment for some thirty to fifty hours of work he performed. [Pl.'s Resp. ¶¶ 29-31, PSMF ¶ 11]. ATA contends that Hart had no authority to alter Carroll's time entries, that he has no personal knowledge of whether she could or did alter his time entries, and that the handful of examples of altered time entries Carroll identified at his deposition amount to just a few hours of altered time. [DSMF ¶¶ 29-31].

Carroll received payment for all of his approved time entries. [DSMF ¶ 35]. Carroll has no records to support his claim of altered time entries. [DSMF ¶ 36, Pl.'s Resp. ¶ 36].

In February 2013, Hart offered Carroll blanket approval of all of his miscellaneous hours, and of additional hours beyond those he actually worked, if he would have sex with her. [PSMF ¶ 17, DSMF ¶ 38]. Plaintiff refused. [PSMF ¶ 18, DSMF ¶ 39] At about the same time, Plaintiff needed more time to service Kroger stores due to employee error at these stores. [PSMF ¶ 19]. Carroll contends that Hart began reducing his miscellaneous time entries around this same time because he would not have sex with her. [PSMF ¶¶ 18-19].

Sometime in March 2013, Carroll approached Hart to ask if he could be assigned more stores to service so that he could earn more money. [PSMF ¶ 13]. Hart claimed that she had the ability to assign Carroll to more stores by offering to place him on a newly open route. [PSMF ¶ 14]. Hart offered to assign Carroll to this route if he would have sex with her. [PSMF ¶ 15, DSMF ¶ 41]. Plaintiff refused. [PSMF ¶ 16]. Hart did not assign Plaintiff to another route or to additional stores. [PSMF ¶ 16].

Hart engaged in crude speech and conduct in Carroll's presence. [DSMF ¶ 37]. Incidents taking place during Carroll's employment with ATA included the following:

Additionally, over the final month of Carroll's employment with ATA (between mid-March 2013 and April 24, 2013), Hart would often appear at the locations and times Plaintiff was scheduled to service a store, follow him around the store, and make suggestive comments and dance. [PSMF ¶ 32, Response to Plaintiff's Statement of Material Facts (“Df.'s Resp.”) ¶ 32]. Plaintiff attempted to avoid Hart by varying his work schedule without notice. [Doc. 40-1 ¶ 13].

*6 Hart repeatedly told Carroll that if he reported her conduct to management at ATA, Carroll would be terminated. [PSMF ¶ 53]. Hart also informed Carroll that her sister was a police officer, which Carroll understood to be a veiled and believable threat against him. [PSMF ¶¶ 55-56, Doc. 38-5, Deposition of Reginald Carroll (“Carroll Dep.”), 93:2-24, 95:1-9]. Carroll told Hart to stop her behavior, but he did not attempt to gain the attention of any store employees when Hart engaged in offensive conduct. [DSMF ¶¶ 45-46]. Carroll also did not notify anyone at ATA of Hart's conduct. [DSMF ¶ 48, Pl.'s Resp. ¶¶ 44, 48]. Carroll had no reason to believe that ATA was aware of or authorized Hart's actions. [DSMF ¶ 49]. Had Carroll notified Doty, she would have taken action in accordance with the Harassment Policy by notifying ATA's human resources department. [Doc. 38-3, Affidavit of Stephanie Doty ¶ 16].

Carroll notified Hart of his resignation on April 24, 2013. [DSMF ¶ 51]. His resignation email consisted of two sentences notifying Hart of the resignation and asking her to inform her supervisors. [Pl.'s Resp. ¶ 51]. Though Carroll did not provide further services for ATA after April 24, time was entered in his records and on his behalf for store services between April 24 and May 3. [DSMF ¶ 52-53, Pl's Resp. ¶ 53]. Hart wrote emails to Carroll during this time stating that she was performing work on his behalf and giving him credit through time entries in an effort to bring him back into employment with ATA. [Doc. 38-6, Exhibits to Carroll Dep., Ex. 19, at pp. 125, 138]. Carroll objected to Hart's claimed actions. [Pl.'s Resp. ¶ 55]. Carroll was paid for 13.25 hours that he did not work from April 25 through May 3, for a total payment of $124.74. [DSMF ¶ 54].

Hart reported to Doty via email on May 4, 2015 that Carroll had resigned effective May 8, 2013, because Carroll was frustrated with his job duties and associated travel. [Ex. 19 to Carroll Dep., p. 107 & 137].[4]Though he was copied on that email, Carroll did not correct the reasons given for his resignation or his effective date of resignation. [DSMF ¶ 56]. He also did not report Hart's alleged harassment. [DSMF ¶ 56]. Carroll did not notify ATA that the wages he was paid for time entered under his name from April 25 through May 3 were unearned, and he did not repay the wages. [DSMF ¶ 55].

From the time he resigned through at least June 2013, Hart sent Carroll emails with sexually charged language.[5] [DSMF ¶ 33, 57, Ex. 19 to Carroll Dep.]. Hart's communications included the following:

*7 During this time, after her repeated sexually charged emails went unanswered by Carroll, Hart began to threaten Carroll's physical safety. [PSMF ¶ 57]. Hart's emails included the following statements:

Carroll emailed Hart, telling her to stop writing to him, on June 3, 2013. [DSMF ¶ 47].

Plaintiff's surviving claims include his Title VII sexual harassment claims against ATA (Counts I and II), his FLSA claim against ATA and Hart (Count IV), and his claim for punitive damages against ATA (Count VI). [See Doc. 11 at pp. 2, 27].

Plaintiff alleges that he was subjected to unlawful sexual harassment due to his sex (male) by his female supervisor, Hart, in violation of Title VII. Count I of the Complaint alleges sexual harassment on a hostile work environment theory, while Count II alleges sexual harassment on a tangible employment action theory. [Doc. 1 ¶¶ 26-33]. Defendant argues three grounds in favor of its Motion for summary judgment: that Plaintiff does not establish sufficiently severe or pervasive harassment [Doc. 38-1 at pp. 14-18]; that Plaintiff unreasonably declined to use the Harassment Policy procedures for reporting sexual harassment about which he knew [id. at pp. 18-21]; and that Plaintiff does not show that a tangible employment action occurred. [Id. at pp. 21-23].

Title VII prohibits employment discrimination with respect to an employee's compensation, terms, conditions, or privileges of employment, because of the individual's sex. 42 U.S.C. § 2000e-2(a)(1). “Employees of either gender may experience discrimination or harassment in a variety of different forms, one of which is unwelcome sexual advances.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1274 (11th Cir. 1999). Although Title VII does not mention the term “sexual harassment,” courts have long recognized that Title VII prohibits such conduct. Id. One way actionable sexual harassment occurs is when inappropriate sexual conduct causes a hostile work environment that is sufficiently severe or pervasive to alter the terms and conditions of work. Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir. 2004).

*8 To establish a hostile work environment sexual harassment claim under Title VII, an employee must allege and prove: (1) that he belongs to a protected group; (2) that he was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment was based on his sex; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that a basis exists for holding the employer liable. Mendoza, 195 F.3d at 1245; Hulsey, 367 F.3d at 1244; Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L.Ed.2d 295 (1993). The “severe and pervasive” element contains both an objective and a subjective component, such that “the complaining employee perceives the harassment as severe and pervasive, and ... a reasonable person in the plaintiff's position would adjudge the harassment severe and pervasive.” Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000).

In determining whether an environment is objectively severe and pervasive, the court must consider the frequency and severity of the discriminatory conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee's work performance. Id. (citing Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997)); Harris, 510 U.S. at 23, 114 S. Ct. at 371. The court uses “a totality of the circumstances approach” in this analysis, “instead of requiring proof of each factor individually.” Hulsey, 367 F.3d at 1248 (citation omitted). As the Supreme Court explained in Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283-84, 141 L.Ed.2d 662 (1998), “simple teasing, ... offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.... We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.” Id. (quotation omitted).

Given the facts presented and considered,[8] I conclude that Plaintiff has presented a genuine material issue of whether Hart's actions toward him were sufficiently severe or pervasive. Plaintiff's deposition testimony and the considered portions of his Declaration make clear that Hart's conduct was frequent and occurred regularly when she and Plaintiff were in the same space over the last two months of Plaintiff's employment. She created unwanted physical contact of a sexual nature on at least three occasions in the course of less than three months in a part-time position. The repeated nature of the conduct also led Plaintiff to alter his work schedule just to avoid contact with Hart, interfering with the performance of his job duties.

Defendant contends that Plaintiff has not shown that Hart's conduct was physically threatening or humiliating. Some of Hart's alleged comments in isolation (e.g., calling Plaintiff “Mr. Hottie” repeatedly) do fall into the category of “mere offensive utterances,” Mitchell v. Pope, 189 Fed.Appx. 911, 913 (11th Cir. 2006), or “flirtation,” which “is not sexual harassment.” Gupta v. Florida Bd. of Regents, 212 F.3d 571, 584 (11th Cir. 2000), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The totality of the conduct and the circumstances in which they occurred, however, move Hart's conduct into the realm of actionable misconduct. In Gupta, the court contrasted “the ordinary tribulations of the workplace,” conduct that no “reasonable person would view ... as severe,” with “[a]ll of the sexual hostile environment cases decided by the Supreme Court,” which at that time “involved patterns or allegations of extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that permeated the [employees'] work environment.” Id. at 586 (citations and internal quotations omitted). The record evidence read in the light most favorable to the nonmoving Plaintiff, reveals just this sort of pattern of blatant, overtly sexual, “unredressed, and uninhibited sexual threats or conduct,” that constitutes severe or pervasive harassment in the Eleventh Circuit.[9]

*9 Under the circumstances presented here, whether Hart's conduct was sufficiently severe or pervasive is not appropriately resolved on summary judgment. See Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247, 1253 (11th Cir. 2013) (“a case should be put to the jury if there is any genuine issue of material fact, including one created solely by the testimony of a party”; even “self-serving” accounts, if non-conclusory and objective, preclude summary judgment); Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006) (“it is not proper to grant summary judgment on the basis of credibility choices”).

Defendant ATA next argues that Plaintiff failed to avail himself of ATA's promulgated procedures for reporting and preventing sexual harassment, requiring summary judgment in its favor. “An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270; Faragher, 524 U.S. at 807, 118 S. Ct. at 2293. The employer may assert an affirmative defense, however, where it carries its burden to show by a preponderance of the evidence “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270; Faragher, 524 U.S. at 807, 118 S. Ct. at 2292-93; see also Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001) (“Both elements must be satisfied for the defendant-employer to avoid liability, and the defendant bears the burden of proof on both elements.”).

The obligation placed on the employee to use reasonable care to avoid harm is meant to avoid future harm to the employee and to other potential victims. See Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 35 (1st Cir. 2003) (Supreme Court, through Faragher and Ellerth, “necessarily requires the employee in normal circumstances to make this painful effort” of reporting supervisor's sexual harassment “if the employee wants to impose vicarious liability on the employer and collect damages under Title VII”). An employee is excused from “this painful effort” when the employee shows that his non-compliance was reasonable under the circumstances, thus preventing the defendant from satisfying the second prong of the affirmative defense. Frederick, 246 F.3d at 1314; Jimerson v. Int'l Longshoremen's Ass'n, Local 1423, No. CV205-101, 2005 WL 3533044, *8-10 (S.D. Ga. Dec. 22, 2005) (denying application of Faragher/Ellerth affirmative defense on summary judgment and finding failure to comply with sexual harassment grievance reporting policy reasonable where union officials had persuaded employee not to pursue complaint). One such circumstance is when the employee has a credible fear of reprisal or retaliation, though “[s]ubjective fears of reprisal,” without more, “do not excuse [a] failure to report ... alleged harassment.” Walton v. Johnson & Johnson Servs., 347 F.3d 1272, 1290-91 (11th Cir. 2003).

Plaintiff does not contest that ATA met the first prong of the Faragher/Ellerth affirmative defense, and he does not dispute that he failed to report Hart's conduct to ATA pursuant to its Harassment Policy under the second prong. [Doc. 40 at p. 20]. Instead, Plaintiff argues that Faragher/Ellerth does not apply to bar his Title VII claims because his failure to report Hart's misconduct was “due to her repeatedly threatening Plaintiff's job and personal safety” if he did so, and therefore reasonable. [Id. at pp. 20-23].

*10 Plaintiff's concerns of physical retaliation could only have arisen after he left ATA, as he testified both that any threats against his life occurred after his employment ended and that he did not alter his behavior in response to Hart's threats while he remained employed by ATA. Those threats, as well as the emails Hart sent him after his resignation, could not caused fear of reprisal while he was still employed. Plaintiff also testified at his deposition that he feared losing his job if he complained and that Hart was already retaliating against him by altering his time entries for refusing to have sex with her.

The fear of losing hours or his job, alone, is not sufficient to justify Plaintiff's failure to follow the procedures for reporting harassment promulgated by ATA in the Harassment Policy. Swindle v. Jefferson Cnty. Comm'n, 593 Fed.Appx. 919, 924-25 (11th Cir. 2014) (“a fear of being fired is not an extenuating circumstance” for failing to report incidents of harassment) (citing Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1307 (11th Cir. 2007)); Nurse “BE” v. Columbia Palms W. Hosp. Ltd. P'ship, 490 F.3d 1302, 1310-11 & n.14 (11th Cir. 2007) (finding fear of losing job insufficient to avoid “hard choice” of reporting sexual harassment or losing opportunity to prosecute Title VII claim against employer based on harassment); seealso Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir. 1999) (“an employee's subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee's duty under Ellerth to alert the employer to the allegedly hostile environment”). A reasonable factfinder thus could not find that Plaintiff had a “credible fear” of reprisal during his ATA employment sufficient to excuse him from failing to report the harassment. See Armstrong v. Standard Furniture, 197 Fed.Appx. 830, 833 (11th Cir. 2006) (employee offering “no evidence that she would be fired if she reported” sexual harassment did not present “credible threat of retaliation”); Walton, 347 F.3d at 1290-91; Shaw, 180 F.3d at 813.

ATA has demonstrated that there is no genuine dispute of material fact that it has established both prongs of the Faragher/Ellerth affirmative defense. It should therefore not be held vicariously liable for Hart's sexual harassment of Plaintiff under a hostile work environment theory, and summary judgment should be entered in its favor on Plaintiff's claim under that theory (Count I).

This does not end the analysis of Plaintiff's Title VII claims. Defendant also argues that Plaintiff has not established that he suffered a tangible employment action, noting that Plaintiff has no personal knowledge that Hart actually denied him earned wages or the opportunity to work more hours in retribution for refusing her advances. [Doc. 38 at pp. 21-23]. This is important because, if Plaintiff presents a genuine dispute of material fact over whether he suffered a tangible employment action, Defendant cannot rely on the Faragher/Ellerth affirmative defense to obtain summary judgment on Plaintiff's tangible employment action sexual harassment claim. Baldwin, 480 F.3d at 1303 (citing Ellerth, 524 U.S. at 762-63, 765, 118 S. Ct. at 2269, 2270, and Faragher, 524 U.S. at 808, 118 S. Ct. at 2293).

Plaintiff argues that he suffered two tangible employment actions. In the first, Hart offered in February 2013 to approve all of his miscellaneous hours and to approve hours he did not work if he would have sex with her, and withheld approval of his reported hours (effectively reducing his paid hours) after he rejected her offer. In the second, Hart offered in March 2013 to place him on a new route of stores if he would have sex with her, and refused to assign him to that route after he rejected her offer. [Doc. 40 at pp. 9-13]. Plaintiff contends that each of these actions altered his compensation through reduction of hours of work for which he was paid and hours of work made available to him, respectively. [Id.].

*11 “An employer is strictly liable if its supervisors take a tangible employment action on the basis of forbidden criteria.” Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1254, 1263 (M.D. Ala. 2001) (citations omitted). “A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” Ellerth, 524 U.S. at 761, 118 S. Ct. at 2268, and “in most cases inflicts direct economic harm.” Id. at 762, 118 S. Ct. at 2269. A reduction in an employee's hours, which reduces the employee's take-home pay, qualifies as a tangible employment action because it “alters the employee's compensation.” Gupta, 212 F.3d at 587. So does the denial of a job benefit based on an employee's reaction to sexual harassment: “To demonstrate a tangible employment action occurred, ‘the employee must prove that she was deprived of a job benefit which she was otherwise qualified to receive because of the employer's use of a prohibited criterion in making the employment decision.’ ” Mangrum v. Republic Indus., Inc., 260 F. Supp. 2d 1229, 1248 (N.D. Ga. 2003) (quoting Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir. 1982)), aff'd, 88 Fed.Appx. 390 (11th Cir. 2003); see also Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548, 1552 (11th Cir. 1997) (vicarious liability arises in a quid pro quo sexual harassment case where “[t]he acceptance or rejection of the harassment by an employee must be an express or implied condition to the receipt of a job benefit or the cause of a tangible job detriment”). Beyond proving the mere reduction of his hours, Plaintiff must also show that a reasonable jury could find that the reduction was causally related to the incidents of harassment. See Cotton, 434 F.3d at 1231-32.

Plaintiff's deposition testimony and Declaration, seen in the context of Hart's threatening emails sent after his resignation from ATA and in the light most favorable to him, provide enough information for a jury to find that Hart made the alleged offers on a quid pro quo basis. Those offers were promises of benefits by a supervisor if her subordinate submitted to her advances, coupled with threats of economic or other work detriments if he did not submit. See Dinkins, 133 F. Supp. 2d at 1263 (“Submission to harassment as an implied condition for receiving a job benefit is a significant change in employment.”).

Defendant replies that Hart never had authority to offer a new route or approval of extra time entries to Plaintiff, and so he could not as a matter of law show that harassment caused a tangible employment action that Hart was powerless to inflict. [Doc. 42 at p. 12]. Even if Hart lacked the actual authority to approve more of Plaintiff's time entries or to assign him new stores, as the Doty Affidavit indicates,[10] [see Doc. 38-3, Affidavit of Stephanie Doty, ¶¶ 6, 10], Plaintiff was not in a position to dispute Hart's apparent authority. The only person Plaintiff met who worked for ATA was Hart; Hart provided him with training, oversight and advice; and Hart otherwise wielded authority over Plaintiff. Whyte v. Alston Mgmt., Inc., No. 10-81041-CIV, 2011 WL 12450319, *6 (S.D. Fla. Nov. 1, 2011) (“the master can be liable if the ‘servant purported to act or speak on behalf of the principal and there was reliance upon apparent authority,’ so long as the victim's belief in the authority to act was reasonable”) (quoting Ellerth, 524 U.S. at 758, 118 S. Ct. at 2267); see alsoHenson, 682 F.2d at 910 (typically, “the supervisor relies upon his apparent or actual authority to extort sexual consideration from an employee. Therein lies the quid pro quo.”). Requiring Plaintiff to discover on his own who held the real power in ATA's structure in order to sustain the reasonable quality of his belief that Hart could exact retribution would place an obligation on him unsupported by law.

*12 Accordingly, I RECOMMEND that Defendant's Motion for summary judgment be GRANTED as to Plaintiff's claim for Title VII sexual harassment on a hostile work environment theory (Count I), because ATA has established a Faragher/Ellerth affirmative defense to liability; and DENIED as to Plaintiff's claim for Title VII sexual harassment on a tangible employment action theory (Count II), because Plaintiff has shown enough evidence for a reasonable factfinder to conclude that Hart imposed a tangible employment action against him in the course of her harassment, precluding the application of the affirmative defense.

Defendant moves for an entry of judgment on Plaintiff's claim against it under the FLSA. Defendant offers two grounds: first, that ATA's time records are accurate, and second, that Plaintiff cannot identify or provide other evidence that entries are inaccurate (and thus that he worked more hours than were recorded) due to someone else's error. [Doc. 38-1 at pp. 23-24]. Even if a few entries were in error, moreover, Defendant claims that Plaintiff was more than compensated for the errors by the wages he received when he was not working after his resignation. [Id.].

Eleventh Circuit case law establishes that “the requirements to state a claim of a FLSA violation are quite straightforward.” Sec'y of Labor v. Labbe, 319 Fed.Appx. 761, 763 (11th Cir. 2008). The elements that must be shown are a failure to pay overtime compensation and/or minimum wages to covered employees, and/or failure to keep payroll records in accordance with the FLSA. See id. (citing 29 U.S.C. §§ 206, 207, and 215(a)(2) and (5)). Plaintiff pleaded that he is a covered employee, and Defendant has not contested that he is. Plaintiff must then show either a failure to pay minimum wages owed him or a failure by ATA to keep payroll records in compliance with the FLSA over a defined period of time.

Section 11(c) of the FLSA requires a covered employer to “make, keep, and preserve such records of the persons employed by [it] and of the wages, hours, and other conditions and practices of employment maintained by [it].” 29 U.S.C. § 211(c). Implementing regulations provided that these records shall include hourly rate of pay, hours worked daily, total straight-time earnings or wages due for hours worked, and similar statistics for all covered employees. See 29 C.F.R. § 516.2(a). Though the plaintiff has the burden of proving the amount of damages to be awarded, where the employer has not kept adequate records, the employee may satisfy this burden by showing a prima facie case including “sufficient evidence to prove that he ‘performed work for which he was improperly compensated’ and ‘sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.’ ” McLaughlin v. Stineco, Inc., 697 F. Supp. 436, 450 (M.D. Fla. 1988) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S. Ct. 1187, 1192, 90 L.Ed. 1515 (1946)).

Plaintiff has demonstrated a genuine issue of material fact over whether Hart altered his records, consequently denying him pay for certain hours he worked and bringing ATA's payroll records with regard to Carroll out of compliance with the FLSA. He points to emails sent by Hart, contemporaneously with time entries ostensibly showing that he worked for ATA after his resignation, in which Hart writes that “[s]he might be trying to stop me from entering time in your payroll.... But only in her wildest dreams would she be able to stop me,” and “I will not put any more time in your payroll after I f[i]nd the boxes at [store] 364.” [Ex. 19 to Carroll Dep. at pp. 125, 138]. When considered alongside other record evidence, including Hart's post-employment threatening emails to Carroll, and her email to Doty claiming that Plaintiff had actually resigned effective May 8 (two weeks after he had actually resigned), a reasonable factfinder could conclude that Hart was capable of manipulating Carroll's time entries to his detriment, and did so.[11]

*13 Plaintiff also argues that the inaccuracy of ATA's payroll records discharges his responsibility to state precisely which records were faulty and how much he is owed in unpaid wages, and in any event, that the identifications he made during his deposition covered only a small portion of the deposition exhibit and were sufficient to create a genuine dispute of material fact over whether other records were faulty. [Doc. 40 at pp. 24-25]. Plaintiff's testimony (a) that he was not paid for up to fifty hours of work over his three-month tenure, and (b) identifying specific items he believes are inaccurate at his deposition, is thin but “sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference,” such that his claim may survive summary judgment and support a jury finding in his favor.[12] McLaughlin, 697 F. Supp. at 450 (M.D. Fla. 1988) (citation omitted); see also Etienne v. Inter–County Sec. Corp., 173 F.3d 1372, 1375 (11th Cir. 1999) (“[W]here the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes ... an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.”).[13]

I thus RECOMMEND that Defendant ATA's Motion for summary judgment be DENIED with regard to Plaintiff's claim under the FLSA (Count IV).

Plaintiff's FLSA claim is the sole remaining claim cognizable against Hart. An individual may be liable under the FLSA where she exercises “supervisory authority” over, or “independently exercises control of the work situation” of, the complaining employee and was responsible in whole or part for the alleged violation while acting in the employer's interest. Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 153 (3d Cir. 2014) (citations and internal quotations omitted).

Plaintiff has not responded to the Court's order to show cause why Hart should not be dismissed as a defendant in this action. Plaintiff also has not come forward with evidence of service of process on Hart, or an explanation as to why lack of service should be excused. Hart has not appeared specially or otherwise. Under the version of Federal Rule of Civil Procedure 4(m) in effect at the time this lawsuit began, Plaintiff was required to serve all defendants within 120 days of filing suit. As well over a year has passed since that time, I RECOMMEND that this remaining claim against Donna Hart be DISMISSED.

Both parties argue that Plaintiff's punitive damages claim should rise and fall along with Plaintiff's Title VII claims. [Doc. 38-1 at p. 25; Doc. 40 at p. 25]. As explained above, I recommend that Plaintiff's Title VII claim for sexual harassment on a tangible employment action theory should survive summary judgment. I thus RECOMMEND that the Motion for Summary Judgment be DENIED as to Plaintiff's punitive damages claim (Count VI).

*14 Many of Carroll's asserted material facts and significant portions of his argument rely on the facts asserted in the Declaration of Reginald Carroll (“Declaration” or “Carroll Declaration”). [Doc. 40-1]. In evaluating ATA's Motion for summary judgment, then, I must consider ATA's Notice of Objection to Plaintiff's Declaration Under Oath (“Objection”). [Doc. 43].

The Federal Rules of Civil Procedure provide that affidavits and declarations in support of summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). I thus will consider only those portions of the Carroll Declaration that are based on personal knowledge and that do not involve hearsay. Initially, I note that ATA objects to Carroll's statements in Declaration paragraphs 13 and 16 that ascribe an intention to Hart's actions, arguing that a declaration may only testify to matters within the declarant's personal knowledge. Fed. R. Civ. P. 56(c)(2). Plaintiff does not explain how he would have personal knowledge of Hart's intentions in performing the alleged conduct, however obvious it may have seemed to him at the time. I therefore disregard statements in paragraphs 13 and 16 ascribing intentions to Hart's conduct in evaluating Defendant's Motion for summary judgment.

Defendant's other objections boil down to a sham affidavit argument. The “sham affidavit” doctrine is designed to “prevent parties from defeating motions at the summary judgment phase by submitting an affidavit that creates an issue of fact, but that also contradicts prior sworn testimony of the affiant.” OSA Healthcare, Inc. v. Mount Vernon Fire Ins. Co., 975 F. Supp. 2d 1316, 1319 (N.D. Ga. 2013). A respondent to a motion for summary judgment cannot, without some explanation, contradict his previous sworn testimony giving “clear answers to unambiguous questions which negate the existence of any genuine issue of material fact” by submitting an affidavit in an attempt to manufacture such an issue on summary judgment. Van T. Junkins & Associates, Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984).

The Eleventh Circuit has clarified that a court may only invoke the sham affidavit doctrine where the affidavit “ ‘contradicts, without explanation, previously given clear testimony.’ ” Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir. 1986) (emphasis removed) (quoting Van T. Junkins, 736 F.2d at 657). Discrepancies that merely “create an issue of credibility or go to the weight of the evidence” are not to be disregarded. Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). Rather, “the affidavit must be ‘inherently inconsistent’ with the affiant's deposition testimony. A statement in an affidavit that is merely at odds with earlier deposition testimony is not grounds for exclusion.” Merritt v. Hub Int'l Sw. Agency Ltd., No. 1:09-CV-00056-JEC, 2011 WL 4026651, *2 (N.D. Ga. Sept. 12, 2011), aff'd, 466 Fed.Appx. 779 (11th Cir. 2012) (quoting Van T. Junkins, 736 F.2d at 658).

Because ATA's arguments differ by paragraph, I analyze each objection separately below.

ATA objects because Carroll stated at his deposition that he did not know the location of the new route of stores offered to him by Hart in exchange for sex. In his Declaration, Carroll states that the route was in Sandy Springs. The location of the route, however, is not material to the impact of the offer by Hart. A “statement in an affidavit that is merely at odds with earlier deposition testimony is not grounds for exclusion.” Merritt, 2011 WL 4026651 at *2.

*15 ATA objects on two grounds. First, ATA argues that paragraph 10 claims that Hart offered to approve all miscellaneous hours Carroll entered into ATA's timekeeping system in exchange for sex before March 2013, which contradicts Carroll's deposition testimony. This is not accurate; the deposition excerpt ATA cites includes Carroll's assertion that the new route-for-sex offer occurred in mid-March 2013, not that the miscellaneous hours-for-sex offer happened at that time.

Second, ATA argues that paragraph 10 contradicts Carroll's deposition testimony that he “entered his own time into ATA's electronic database using unique logins; that he has no personal knowledge whether Ms. Hart had the ability to approve his time entries; that he has no personal knowledge whether Ms. Hart ever accessed his time entries; that he has no personal knowledge whether Ms. Hart had his logins; and that he could not identify any missing time entries from a printout of his electronic timekeeping record.” [Doc. 43-1 at p. 3]. Carroll's declaration that Hart refused to approve (and in fact reduced) hours he entered is not necessarily inconsistent with his statements at his deposition. There, he testified that Hart told him she needed to approve his entries, and he claimed that the entries he made did not match the entries on the payroll summary sheets he saw in the exhibit presented to him. [Carroll Dep., 57:1-61:7, 68:12-16, 99:7-20, 126:3-18 & Ex. 9]. Though this may be implausible, it is not inconsistent.

Carroll declares that the time he needed to service Kroger stores on his route increased because Kroger employees frequently misplaced items, but that Hart refused to approve any additional time because Carroll refused her advances. ATA objects because he made no mention at his deposition of increased time requirements from his job, only that the time required did not decrease over time. Further, and similarly to its objections to paragraph 10, ATA notes that Carroll claimed no personal knowledge of whether Hart could or did access his time entries, and that he only identified three time entries at his deposition that he believes were altered (and even then for no more than an hour). At his deposition, Carroll made clear that these were examples, and that he could not recall precisely how often he noticed altered time entries, only that he noticed more alterations after refusing Hart's sexual advances. It is not inherently inconsistent for Carroll to later declare that Hart altered his time entries some unspecified amount of times even in the face of increased time on the job.

In this lengthy paragraph, Carroll makes several specific declarations regarding Hart's conduct during his employment with ATA:

[Doc. 40-1 ¶ 12]. ATA objects because much of Carroll's deposition was devoted to the topic of his alleged sexual harassment by Hart and the specifics of the alleged conduct, including words she used, when she acted, and the number of times she allegedly harassed him. None of Carroll's specific recollections in this paragraph, however, are to be found in the deposition transcript, EEOC Charge, handwritten notes accompanying his Charge, pleading, or response to ATA's motion to dismiss. [Doc. 43-1 at p. 5].

*16 On review of the cited materials, I agree with ATA. Particularly with regard to his deposition, before which Plaintiff presumably contemplated the events giving rise to his case, one would expect some or all of these recollections to have arisen in response to the questions on cross-examination made by ATA's counsel. It is “inherently inconsistent” that he could later have recalled to such a degree of specificity the offenses Hart committed against him on the eve of filing his opposition to summary judgment. The Declaration provides no explanation for contradicting the kind of “clear answers to unambiguous questions which negate the existence of any genuine issue of material fact” given in Plaintiff's deposition, and Plaintiff offers no response to ATA's Objection. I accordingly will sustain ATA's objection to paragraph 12 of the Declaration.

Defendant objects because Carroll's descriptions of Hart's appearance and conduct in this paragraph are inconsistent with those provided in his deposition. Deposition excerpts aside from those cited by ATA [see Carroll Dep., 88:17-89:4, 90:2-23], however, generally conform with the allegations of this paragraph. [Id. 95:16-96:5].

At his deposition, Carroll testified that Hart touched her hand against his back just above his buttocks; in his Declaration, Carroll alleges that Hart grabbed his buttocks. While the difference in hand placement is slight, Carroll was clear at his deposition in response to a specific question and confirmed his answer [Carroll Dep., 131:25-132:10]; there is no support in the record for his revision in the Declaration. I will sustain ATA's objection to paragraph 15 of the Declaration.

In contrast, Carroll's assertion that “Hart intentionally rubbed her buttocks against my genitals” twice during his employment with ATA is not inconsistent with his deposition testimony. Carroll did testify that Hart pressed her buttocks against his groin once, [Carroll Dep, 131:13-24], but also that he clearly remembered the “first” time that happened because it was “shocking.” [Id. 88:2-8]. This testimony implies that Hart engaged in this conduct more than once, and is not inherently inconsistent with this paragraph.

ATA argues that Carroll is revising his deposition testimony and attempting to diminish the import and clarity of the following exchange, purportedly because Carroll was confused about the subject matter:

[Carroll Dep., 94:13-95:15]. Carroll declares that when he responded “no,” he was referring to a separate threat by Hart involving Russian criminals that Hart made only after he left employment with ATA. [See id. 94:5-12]. While Carroll is permitted to explain himself on submitting his Declaration, this particular explanation so contorts his testimony as to render it unrecognizable. The exchange above includes Carroll's acknowledgment that Hart told him “not to report her behavior to ATA” during one of their interactions “at the store,” as opposed to “afterwards,” when Hart threatened him via her alleged connections to “the Russians.” The paragraph's contradiction with Carroll's deposition testimony is substantially “without explanation” in light of “previously given clear testimony.” Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir. 1986) (emphasis removed) (quoting Van T. Junkins, 736 F.2d at 657). I thus will sustain ATA's objection to paragraph 17.

*17 Finally, ATA objects to Carroll's assertion that he did not intend to indicate that the time entries he highlighted during the deposition as having been altered were the only such entries. Defendant argues that Carroll had the “opportunity to identify every time entry that he believed was incorrect, and he was repeatedly asked to confirm that he had done so,” but “[h]e only identified three such time entries.” [Doc. 43-1 at p. 6]. At the deposition, Plaintiff analyzed the payroll summary exhibit before him at length before identifying those time entries, but he never unequivocally said that those entries were the only ones—a fact he clarified during direct examination. [Carroll Dep., 56:1-61:12, 174:17-175:2 & Ex. 9]. Carroll's assertions here consist of a “statement in an affidavit that is merely at odds with earlier deposition testimony,” and need not be excluded. Merritt, 2011 WL 4026651 at *2.

For these reasons, I SUSTAIN ATA's Objection to Declaration paragraphs 12, 15, and 17 in full, and to paragraphs 13 and 16 to the extent Carroll assumes Hart's intentions behind her conduct. In ruling on ATA's Motion for summary judgment, I have not considered the assertions Carroll makes in these paragraphs, statements of fact relying solely on these assertions, and Plaintiff's stated argument against summary judgment relying solely on these assertions. I OVERRULE the remaining contentions within ATA's Objection.

I must also consider whether Defendant's alternative motion to dismiss as a spoliation sanction has merit. Defendant alleges that Plaintiff has withheld, destroyed, and altered evidence while contemplating this litigation as a means both of preventing ATA from determining the true facts and of “controlling the narrative.” Defendant argues that dismissal is therefore appropriate because Plaintiff's destruction of evidence irreparably prejudiced Defendant's capacity to present a full and proper defense. [Doc. 38 at p. 11-13, Doc. 42 at pp. 1-5]. Plaintiff denies the accusation, portraying himself as naive and negligent at worst, and having not fully contemplated either litigation or the import of his actions when he disposed of a cell phone and of emails relevant to his case. [Doc. 40 at pp. 2-8].

“Spoliation is the destruction ... of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Graff v. Baja Marine Corp., 310 Fed.Appx. 298, 301 (11th Cir. 2009). To be reasonably foreseeable, litigation must have been contemplated; mere awareness of potential liability does not trigger a duty to preserve evidence. Kitchens v. Brusman, 303 Ga. App. 703, 694 S.E.2d 667, 671 (2010) (citation omitted), recon. denied (Apr. 14, 2010), cert. denied (Sept. 20, 2010).[14]“Contemplated” has been defined as “to view as contingent or probable or as an end or intention”; “contemplate” has been defined as “to have in mind as a possibility or plan; expect or intend”; and “contemplation” has been defined as “[c]onsideration of an act or series of acts with the intention of doing or adopting them.” Kitchens, 694 S.E.2d at 671. If Plaintiff destroyed evidence while considering or intending to engage in litigation, then, he committed spoliation.

Plaintiff admits that he destroyed text messages and voicemails, as well as emails sent during his employment with Defendant. The parties differ as to whether Plaintiff altered or destroyed emails produced to Defendant sent after his employment ended. Plaintiff stated at his deposition that all text messages he sent either related solely to work or asked Hart to stop sending him sexually-charged messages. [See Carroll Dep., 92:15-22].

*18 As in Kitchens, this was not a situation where liability was merely a theoretical possibility; Plaintiff approached the EEOC (albeit without counsel) about his claims prior to disposing of his telephone without preserving copies of the texts and voicemails stored in it. Even without having retained counsel, and even if the EEOC did not expressly inform him to retain all documentary evidence, Plaintiff is not relieved of the obligation to avoid recklessly destroying evidence.[15] “Logically, the duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party.” Phillips v. Harmon, 297 Ga. 386, 396 (2015) (citing Graff, 310 Fed.Appx. at 301).

It follows that it is reasonably foreseeable that litigation is a possible course of action after visiting the EEOC to discuss one's claims; at the least, Plaintiff had considered initiating a claim against Defendant before the evidence was destroyed, even if he was not contemplating pursuing his claims at the moments he destroyed his phone and deleted work-related emails. I thus find that spoliation of evidence occurred here. I proceed to consider whether sanctions are warranted and if so, what sanctions I recommend.

Courts have “broad discretion ... to impose sanctions.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). “[I]n determining whether sanctions for spoliation are warranted, the trial Court must weigh the degree of the spoliator's culpability against the prejudice to the opposing party.” Bridgestone/Firestone N. Am. Tire, LLC v. Campbell, 258 Ga. App. 767, 574 S.E.2d 923, 927 (2002) (cited by Flury, 427 F.3d at 946). Five factors guide the Court in this evaluation: “(1) whether the defendant was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the plaintiff acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.” Id. at 926 (citation omitted).[16] “As [a] sanction for spoliation of evidence, a Court may (1) dismiss the case, (2) exclude expert testimony, or (3) issue a jury instruction on spoliation of evidence which raises a presumption against the spoliator.” Heath v. Wal–Mart Stores E., LP, 697 F. Supp.2d 1373, 1378 (N.D. Ga. 2010) (citation omitted); see generally Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 469 S.E.2d 783 (1996) (discussing sanction review considerations).

First, Defendant argues that it is prejudiced because Hart cannot be located and because Carroll refers to no other witnesses to the alleged harassment. This leaves Plaintiff as the only source of evidence for his claims, and by “losing or destroying every text message he and Ms. Hart ever exchanged; deleting Ms. Hart's voicemail messages; and altering, losing or destroying select emails—all of which were within his control—Mr. Carroll has exploited his ability to shape the evidence in the manner most favorable to his claims.” [Doc. 38-1 at p. 13].

However, Plaintiff's claims center on Hart's conduct and statements, not on text messages and voicemails. The spoliated records are not central to proving his case; Defendant is not prejudiced by the inability to examine records that Plaintiff avows are marginal to his claims. That is, even if the text messages, voicemails and emails were devoid of any language that could be described as harassment, that fact would neither meet Defendant's burden on summary judgment to show no genuine dispute of material fact nor prevent Plaintiff from demonstrating such a genuine dispute. The prejudice to Defendant is therefore minimal.

*19 Second, Defendant argues that there is no way to cure the prejudice to its case. I agree. The only two persons present during the alleged misconduct were Carroll, the Plaintiff in this action, and Hart, who is effectively unavailable. Defendant may rely on the same declarations, deposition transcript, and other contemporaneous records to make its case as Plaintiff can, but that does not cure the prejudice. Beyond Hart's supervisor, Doty (who never met Plaintiff in person during the relevant time period), there is no third-party witness or other neutral observer able to compensate for the lack of records illuminating how Hart comported herself during her supervision of Plaintiff.

Third, while these spoliated communications could weigh in favor of Defendant if they concerned only business, or of Plaintiff if they revealed harassment by Hart, they would not markedly affect Plaintiff's ability to make his case at trial as a practical matter (or, as shown above, on a motion for summary judgment). This is not like Flury, where the plaintiff's spoliation of the car that crashed in a drive-worthiness case destroyed the primary piece of evidence available to determine whether defendant was at fault. 427 F.3d at 940-42, 944. Here, the parties have other means to argue their cases to a finder of fact, even without the missing records and without Hart.

Finally, Defendant argues that Plaintiff acted in bad faith by destroying all of the evidence. Plaintiff vigorously contests any assertion of bad faith, [Doc. 40 at p. 2, 5-7], but his explanation is dubious. Plaintiff contends that forces of habit and a lack of foresight contributed to his dispensing of his phone and deletion of old emails prior to thinking through whether and how to preserve communications with Hart. That he did so after he visited the EEOC to discuss his claims is nonetheless troubling. He also does not provide a convincing account as to the odd formatting of the emails he produced to ATA during discovery. [Seegenerally Doc. 38-4, Affidavit of Mari Myer]. Though it is difficult to determine on this record whether Plaintiff's destruction of evidence was motivated by malice, bad faith, or some legitimate factor, a reasonable factfinder could infer that Plaintiff destroyed the records in bad faith.

Although “Georgia law does not require a showing of malice in order to find bad faith,” I must “weigh the degree of the spoliator's culpability against the prejudice to the opposing party.” Flury, 427 F.3d at 946. Georgia law is unsettled as to whether bad faith is strictly required to impose sanctions for spoliation, seePhillips, 297 Ga. at 398, and the Eleventh Circuit has issued contradictory authority on the matter. SeeWoodward, 801 F. Supp. 2d at 1371-72 (comparing Flury with Bashir v. Amtrak, 119 F.3d 929 (11th Cir. 1997), and finding that Bashir, having been issued earlier, prevails under corollary of the prior panel rule). Regardless of which rule I apply, however, the record at this point does not support dismissal, “the most severe sanction available to a federal [c]ourt,” to be “exercised [only] where there is a showing of bad faith and where lesser sanctions will not suffice.” Flury, 427 F.3d at 944. Given the reasonable dispute over whether Plaintiff exercised bad faith, and evidence of rather slight (if incurable) prejudice to Defendant, I find that it is inappropriate to impose dismissal under either Flury or Bashir and RECOMMEND that the Defendant's alternate motion for dismissal be DENIED.

Given the potential impact of the spoliation issues on the trial of this case, I also RECOMMEND that the district court hold a pre-trial evidentiary hearing to determine whether any remedial measures or sanctions are warranted, including but not limited to a jury instruction that a rebuttable presumption arises in favor of Defendant. Specifically, the district court may wish to consider the appropriateness of an instruction that the spoliated evidence weighs in favor of a finding that Hart's conduct did not constitute sexual harassment of Plaintiff during his employment with ATA.

*20 After thorough review and consideration, I RECOMMEND that Defendant's Motion for summary judgment [Doc. 38] be GRANTED in part and DENIED in part. Specifically, I RECOMMEND that the Motion be GRANTED as to Plaintiff's claim against ATA for sexual harassment under Title VII through a hostile work environment theory (Count I), and DENIED as to Plaintiff's claims against Defendant ATA for sexual harassment under Title VII through a tangible employment action theory (Count II), under the Fair Labor Standards Act (Count IV), and for punitive damages (Count VI).

I further RECOMMEND that Defendant's Motion for dismissal as a sanction for spoliation [Doc. 38] be DENIED, and that Defendant Donna Hart be DISMISSED from this action for lack of service.

I also ORDER that Defendant's Notice of Objection [Doc. 43] be SUSTAINED as to Plaintiff's Declaration paragraphs 12, 13, 15, 16, and 17, and OVERRULED as to Defendant's remaining contentions.

IT IS SO ORDERED and RECOMMENDED, this 8th day of January, 2016.

Plaintiff did not respond to ATA's request for a more definite statement.

I do not consider Defendant's Reply to Plaintiff's Response to Defendant's Statement of Undisputed Material Facts, [Doc. 42-1], because it is not provided for by the Local Rules of this Court. See LR 56.1B(3) (providing for filing of a “reply” to respond to Plaintiff's statement of additional material facts, but not to rebut Plaintiff's response to Defendant's own statement of material facts). I note that many of Defendant's Reply statements duplicate or reflect statements included in its Objection, which is addressed infra.

Whether Hart had the ability, as opposed to the authority, to review and alter Carroll's time entries is disputed. [DSMF ¶¶ 33-34, Pl.'s Resp. ¶ 34].

The two pages of this email, oddly, are split across more than thirty pages of Exhibit 19. See generally Doc. 38-4, Affidavit of Mari Myer & Section IV infra.

ATA contends that facts regarding post-employment conduct by Hart are immaterial. [Df.'s Resp. ¶¶ 33-52, 54-63]. The Eleventh Circuit has instructed courts to take a “totality of the circumstances approach” when considering sexual harassment claims on summary judgment. Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir. 2004). I therefore consider Hart's conduct after Carroll's resignation material to Carroll's claims.

It is unclear from the parties' statements of facts who Bruce Lucia is, but the context suggests that he was a supervisor above Hart's rank at ATA.

Defendant argues that Plaintiff must show sufficiently severe or pervasive conduct for both of his sexual harassment claims to survive its Motion for summary judgment. That is not the law of this Circuit. See Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. 2006) (distinguishing between showing required for tangible employment action theory and hostile work environment theory). The demonstration of a tangible employment action and a causal link between that action and the subject sexual harassment accomplishes the same objective as a demonstration of severe or pervasive conduct does; both means reach the same end of establishing conduct that alters the terms and conditions of employment. See Burlington Inds., Inc. v. Ellerth, 524 U.S. 742, 753-54, 118 S. Ct. 2257, 2265, 141 L.Ed.2d 633 (1998).

See Section III infra.

See, e.g., Wilcox v. Corrections Corp. of Am., 603 Fed.Appx. 862, 865-66 (11th Cir. 2015) (daily unwanted physical contact over a period of months, two additional attempts to touch her thighs and buttocks, and two expressly sexual comments that plaintiff perceived as humiliating held sufficiently severe or pervasive); Olson v. Lowe's Home Centers Inc., 130 Fed.Appx. 380, 388 (11th Cir. 2005) (harasser subjecting plaintiff to offensive and vulgar sexual comments several times a week over two-and-a-half months, attempting to kiss her once, and rubbing against her twice, held sufficiently severe and pervasive); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002) (daily taunts, including the use of ethnic slurs and derogatory names in an intimidating manner, over the course of one month held sufficiently severe or pervasive); Johnson, 234 F.3d at 509 (“roughly fifteen separate instances of harassment over the course of four months,” including unwanted physical contact and sexually explicit comments, held sufficiently severe or pervasive).

I note that Doty's Affidavit states that she “had the responsibility and authority to review and approve the electronic time entries of merchandisers in my territory, including Mr. Carroll's time entries. Donna Hart did not have that authority.” [Doc. 38-3 ¶ 10]. The affidavit does not state that Hart lacked the ability to review and approve Carroll's time entries, and it does not state that Hart was unable to edit them. Indeed, it appears that Hart was able to enter time under Carroll's name between the time Carroll notified her of his resignation and the time she notified Doty.

In its Reply, Defendant claims that Plaintiff lacks personal knowledge for his assertion that Hart altered his records, and, if anything, the evidence leads to an inference that Plaintiff is responsible both for any records inaccuracies and for entering time after he resigned. [Doc. 42 at pp. 14-15]. This argument lacks merit and does not require further discussion.

Plaintiff's uncontested receipt of wages for time he did not work presumably would be offset from any potential damages awarded for this claim.

I note that Plaintiff will have to prove both his prima facie case at trial and that inaccuracies have so permeated his time entries that he should have the benefit of shifting the burden of production back to ATA to show evidence sufficient to rebut Plaintiff's prima facie case. See Smith v. Werner Enterprises, Inc., No. CIV.A. 14-0107-WS-B, 2015 WL 4459468, *5 (S.D. Ala. July 21, 2015) (quoting Anderson, 328 U.S. at 687):

Federal law governs the imposition of spoliation sanctions because they “constitute an evidentiary matter.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). Georgia law is, however, consistent with federal spoliation principles and provides useful specific guidelines for resolving disputes involving potential spoliation sanctions. Id. I accordingly cite to both federal and state law in my analysis.

Further, Plaintiff admits in his deposition that he wished he had retained the text messages, indicating some awareness that they would bear on his case. [Carroll Dep., 74:4-76:4].

The fifth factor appears targeted at cases where the testimony of an expert is particularly important to proving causation. The fifth factor does not appear to apply here and no party claims that it does. I therefore disregard it in my analysis.