Cockrell v. Greene County Hospital Board et al, No. 7:2017cv00333 - Document 46 (N.D. Ala. 2018)
Court Description: MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 4/4/2018. (PSM)
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FILED 2018 Apr-04 PM 12:02 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION VICKIE COCKRELL, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. GREENE COUNTY HOSPITAL BOARD, ET AL., Defendants. 7:17-cv-00333-LSC MEMORANDUM OF OPINION Before the Court are Defendant Greene Co Fed. R. Civ. P. 56 motion for summary judgment on all claims (doc. judgment on all claims (doc. 30). The issues have been fully briefed and are ripe for review. For the reasons set out below, tion is due to be GRANTED, GRANTED also. I. BACKGROUND1 1 xamination of not be the actual facts. See 17 F.3d 1386, Page 1 of 34 The GCHB operates a hospital, physician clinic, and residential care facility in Eutaw, Alabama. Patterson, a male, was the Chief Executive Officer of GCHB at all times relevant to this case. In May 2013, Plaintiff began her employment with GCHB as a part-time administrative clerk in the residential care facility. In January 2014, Patterson promoted Plaintiff to a full-time position as included orienting new employees, coordinating the completion of paperwork (including payroll tax forms) by new employees, training employees on labor and employment law, maintaining employee records, and creat (Doc. 27 at 3.) Plaintiff would review the employee handbook, which contains an anti-harassment policy2 that provides a reporting procedure for reporting incidents of alleged harassment or discrimination, with new hires during employee 1400 (11th Cir. 1994). The Court is not required to identify unreferenced evidence supporting a specifically cited by the parties. See Corr., 647 F.3d 1057, 1061 (11th istrict court judges are not required to ferret out delectable facts buried in a (internal quotes omitted). 2 See GCH Employee Handbook, Doc. 32ness sexual or other unlawful harassment in the workplace, report it immediately to your supervisor. If the supervisor is unavailable or you believe it would be inappropriate to contact that person, you should immediately contact the Administrator or any other member of management. You can raise Page 2 of 34 orientation. After being placed in the HR Coordinator position, Plaintiff moved to work in the GCHB business office. Other than Patterson, all employees stationed to work in the business office were female. While serving as HR Coordinator, Plaintiff was assigned additional duties as an administrative clerk in the residential care facility in August 2015 and received additional compensation her salary was increased from $12.60/hour to $13.60/hour. At that time, her duty station was moved from the business office to the residential care facility. A few months later, on October 6, 2015, Plaintiff lodged a written complaint via letter which states in Patterson, CEO which cause me to feel harassed, stressed, and targeted for no reason. I have verbally reported the feelings/concerns of his direct harassment to -2 at 166.)3 The evidence Plaintiff provides of other complaints lodged with either her supervisor JoAnne Cameron is her own testimony and the testimony of Pinnia Hines, the Assistant Director of Nursing. Specifically, Cockrell claims that she 3 Cameron and the other alleged recipients of the October 6, 2015 complaint denied receiving it and signed a document testifying to that effect. (See Doc. 32-1 at 17.) Page 3 of 34 complained to Cameron;4 fellow employees, Tiffany Grisby, Sandra Root, Tonya Williams, and Pinnia Hines Charles Robertson ; and former or current board members , Ralph Banks, Loretta Webb, and Sue Vance . (Pl. Dep. at 146, 164, 174, 184-87; Hines Dep. at 22- 23; Robertson Dep. at 22, 68.) Other female employees had also submitted various complaints to . (See Vance Dep. at 33; Robertson Dep. at 50-52.) Then on October 7, 2015, Plaintiff sent a letter to Patterson and Vance, then Chairperson of GCHB, stating that he represented Plaintiff with respect to the terms and conditions of her employment. The letter referred by Patterson and others within management, but made no mention of the alleged discrimination being based on a protected characteristic such as gender or religion. (Doc. 32-1 at 19-20.) On November 16, 2015, Vance sent a letter to ion and retaliation in the 4 Cameron denies any instance of Plaintiff ever lodging a complaint with her regarding See Doc. 32-3, Cameron Dep. Page 4 of 34 workplace and requesting she provide the specifics of her claims in writing to Board Member Fred Hughes to enable GCHB to investigate and take appropriate remedial action if necessary. Vance also directed Plaintiff to report any complaints discrimination, and retaliation directly to Hughes, or in the alternative, to her. Plaintiff did not lodge any complaints with Hughes. Three days later, on November 19, 2015, the management of GCHB received a report from Shelia Henderson , the Payroll/Registration Supervisor, that there appeared to be an invalid signature on the A-4 state tax form of Canda -hired employee. The signature on the Aforms. (See Doc. 32-1 at 24-26, 28-29.) Ms. Brock verified that she did not sign the form and that the signature on the form was not hers. She also indicated that she did not authorize Plaintiff, or anyone else, to sign the document on her behalf. Based on the nature of their duties, Plaintiff, Cameron and Henderson would have all had access to the allegedly forged document. When asked, Plaintiff denied forging the signature on the tax form. On December 3, 2015, Plaintiff was by Cameron. The termination notice states she Page 5 of 34 and amidst concerns regarding her job performance as a result of the forgery. position was filled by another female employee. A few days later, Plaintiff filed her Charge of Discrimination with the EEOC, which is dated December 10, 2015. Cameron also testified that she was suspicious of Plaintiff given other incidents of questionable conduct. (Doc. 39-10, Cameron Dep. at 23-24.) After leaving her position at the nursing home and becoming HR Coordinator, Plaintiff instead of clocking which e] Id. at 25-27.) Cameron also testified that Assistant, reported that Plaintiff would leave confidential information displayed on her computer screen at work and would let other employees gather around her desk to view it. (Id. at 28.) This is explicitly listed as unacceptable behavior in the Employee Handbook. (See Doc. 32-2 at 158.) Finally, Cameron also testified that she discovered Plaintiff was receiving family coverage from Blue Cross/Blue Shield from her pay and that her husband used it during that time. (Doc. 32-3 at 43, 52- Page 6 of 34 53.) As the HR Coordinator, Plaintiff would review add new employees and remove terminated employees from the coverage list, and notify BCBS of those changes. (Id. at 43.) Given that Plaintiff reconciled the BCBS bill, Cameron suspected that Plaintiff knew she was receiving family coverage without being charged for it. II. STANDARD genuine dispute as to any material fact5 and the movant is entitled to judgment as a Id. A genuine dispute as to a material fact exist Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge should not weigh the evidence, but determine whether there Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1049 (11th Cir. 2015); see also Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013). 5 Page 7 of 34 are any genuine issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In considering a motion for summary judgment, trial courts must give deference to the non-moving party by Animal , 789 F.3d 1206, 1213 14 (11th Cir. 2015) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 198 Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a motion evidence to prove a fact necessary to McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting motions for summary judgment, the Page 8 of 34 a disfavored Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). III. DISCUSSION A. S MOTION FOR SUMMARY JUDGMENT 1) Sexually hostile work environment pursuant to Title VII Patterson created a sexually hostile work environment in violation of Title VII. 6 As Reeves v. C.H. Robinson Worldwide, Inc. sets forth, [t]he legal standard for hostile work environment claims in this Circuit is well-settled. To prove a hostile work environment, the plaintiff must show [:] (1) that he or she belongs to a protected group; (2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment must have been based on the sex of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive 6 individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or natio 2[a][1]. Page 9 of 34 working environment; and (5) a basis for holding the employer liable. 594 F.3d 798, 808 (11th Cir. 2010) (citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc), cert. denied, 529 U.S. 1068 (2000). GCHB contends that the alleged conduct was not severe or pervasive enough to alter the terms and conditions of employment amounting to a cognizable sexual harassment claim. To satisfy the fourth element of her sexual harassment claim, Plaintiff must present evidence that is subjectively and objectively7 severe or pervasive. Mendoza, 195 F.3d at 1246. Plaintiff herself must subjectively perceive the environment to be abusive and the harassing behavior must also render the work environment one that a reasonable person would find hostile or abusive. Id. at 1245 (quoting Harris, 510 U.S. at 21-22). When verity of the harassment, this [C]ourt looks at the totality of the circumstances and considers, among other severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive 7 . Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Page 10 of 34 utterance; and (4) whether the conduct unreasonably interferes with the Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012) (quoting Miller, 277 F.3d at 1276). The parties do not dispute that Plaintiff belongs to a protected group as a woman. The evidence8 Plaintiff submitted to support her sexually hostile work environment claim, all of which allegedly occurred over a two-and-a-half-year period between May 2013 and December 2015 while Plaintiff worked in the business office, is as follows: Three to four occasions when Patterson allegedly made a comment regarding the size of a Dep. at 75-76.) One occasion when Patterson allegedly made a comment inquiring if a Id. at 82-85.) Two to four occasions when picture was a photo of the employee from the waist up allegedly wearing only her bra. (Id. at 82-83, 110-12.) 8 The Court has listed only those instances which Plaintiff testified she witnessed personally. See Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1250 (11th Cir. 2014) ( Page 11 of 34 One occasion when Id. at 87-88.) One occasion when Patterson allegedly, while participating in a group o after work. (Id. at 95-98.) Two to three occasions when Patterson allegedly made some sort of , especially those with big hips. (Id. at 113-15.) One occasion when Patterson allegedly told a female employee that she needed to get her hair fixed because it looked butch and needed to be (Id. at 114, 273-74.) Three occasions when Patterson allegedly cited a scripture from the Bible suggesting that men are superior to women. (Id. at 118, 131-32.) One occasion when was not big enough to (Id. at 271.) One occasion when Patterson allegedly asked the female Director of Id. at 275.) One occasion, when, during a conversation on s birthday about a car she liked at a local car dealership, Patterson allegedly said that all he had to do was give her the money for the down payment on the car and he could take her from her husband. (Id. at 277-78.) coId. at 275.) Page 12 of 34 (Doc. 36 at 20-21 n.9; Doc. 29 at 12-13.) Plaintiff also testified that Patterson had a way of intimidating those around him, and that he disciplined female workers in a different manner than he did male workers.9 Additionally, Plaintiff testified that Patterson often made suggestions that women are inferior to men and should be submissive. (Pl. Dep. at 118.) In his deposition, Patterson admitted to yelling and using profanity in the presence of employees. (Doc. 32-8, Patterson Dep. at 65.) Vera Rice and Wennoa Peebles testified that Patterson also made demeaning and belittling comments towards Plaintiff and women, in general. (Rice Dep. at 17, Peebles Affidavit at 2-3.) Jones v. UPS Ground Freight, 683 F.3d s based on a protected category . . . Id. (emphasis added) (quotation marks omitted); see also Reeves, 594 F.3d at 809 n.3 9 Plaintiff testified that the two men she witnessed Patterson disciplining both belonged to the union. As such, they are subject to a specific disciplinary structure, which includes having their supervisor or another person present when receiving discipline. Employees in the business office, including Plaintiff, were not union members. (Pl. Dep. 122-24.) Page 13 of 34 code, and that harassment must discriminate on the basis of a protected (citations omitted). Some10 of the comments alleged by Plaintiff do not have a sexual or gender-related connotation and cannot be used to support a sexual harassment claim. of Veterans Affairs, 822 F.3d 1179, 1195 (11th Cir. 2016) (comments that are offensive and belitting, but not based on a protected category, cannot be used to establish hostile work environment claim); see also Jones, 683 F.3d at 1297 sex or Even if considered in conjunction with the testimony of other witnesses, 11 t rise to the level of severe or pervasive sufficient to sustain a sexually hostile work environment claim as established by 10 The gnat comment and the cracker-jack box comments do not have a sexual or gender-based connotation. (Pl. Dep. at 171, 175.) 11 Plaintiff also proffered testimony of other witnesses showing that: Patterson called a female , he has a habit of talking , referred to women as being backwards and ignorant, commented (Marilyn Atkins -55, 166-69, 180-81); that he would show photographs of half-naked women, told the women that they needed to have a man over them as a department head, and mad behinds. (Wennoa Peebles -22, 159-60.) Page 14 of 34 case law12 in this Circuit. See e.g. Mendoza, 195 F.3d at 1247-48 (holding that where supervisor ubbed his hip against hers while touching her shoulder and smiling at her, made sniffing noises while staring at her groin, and constantly followed and stared at her for eleven months). Applying the four factors above, Plaintiff has failed to show the alleged harassment was objectively severe or pervasive enough to support a Title VII claim. 12 See, e.g., Guthrie v. Waffle House, Inc. 803, 807 (11th Cir. 2012) (conduct of coworker grabbing saying that he would perform certain sexual acts on her, among other lewd comments, held to not reach severe level); Leeth v. Tyson Foods, Inc. severe or pervasive where manager tried to pull plaintiff onto his lap, made comments that he , , and called her on phone on numerous occasions and asked plaintiff to go out with him or meet him at hotel); (per curiam) (affirming aterial fact on hostile work environment claim existed despite evidence of cotelling plaintiff he would perform certain sexual acts on her, Howard v. City of Robertsdale, , and sexual jokes made on regular basis, not objectively severe); cf. Reeves and consisted of various vulgar sexual conversations, many derogatory remarks directed towards women in particular, and the presence of pornography in the workplace was sufficient to meet the pervasiveness requirement and allowed claim to proceed to a jury). Page 15 of 34 and deterred other employees from filing EEOC charges or speaking at 26.) However, upon consideration of the record evidence, the Court finds that especially given that she continued to work until she was fired. While Plaintiff alleges that she packed up her desk because she felt like [she] could Plaintiff testified in her deposition that the incident was on account of Peebles and Henderson making jokes across the room from each other, conversations that Patterson would allegedly encourage. In response, The Court finds that neither this incident nor the other types of treatment averred by Plaintiff is sufficient for a finding that t were altered. In sum, though 13 and ridicule that was sufficiently severe or pervasive to 13 Plaintiff proffered deposition testimony to show that Patterson acted in an intimidating manner such that employees, including Plaintiff, were fearful of losing their jobs. (See Rice Dep. at 23-24 (Q: Have you ever seen or witnessed what you felt or believed was retaliation by Mr. Patterson Page 16 of 34 alter [ ] working Gowski, 682 F.3d at 1313. As such, Title VII hostile work environment claim. 2) Title VII Sexual harassment/gender discrimination claim sexually hostile work environment claim. GCHB avers, and Plaintiff does not contest, that hostile work environment claim. Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); see also U.S. Steel Corp. v. Astrue, 495 F.3d 1272, 1287 n.13 (11th Cir. 2007) In her Response, Plaintiff sets Because for people making complaints about him? A: In my opinion, yes. Q: Can you give me examples of those? A: People that were terminated and the fact they tried to stand up for themselves. . . Q: You think those terminations had a chilling effect in the work place as to people being willing to bring their complaints? Q: Yes.)) (See also .) Page 17 of 34 VII[,] sexually hostile work environment claim. Webb-Edwards v. Orange Cty. , 525 F.3d 1013, 1026 (11th Cir. 2008) (citing Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). Consequently, it fails for the same reasons detailed above. 3) Title VII Religious hostile work environment claim The parties agree that the standard for a showing of discrimination is the same for both sexual and religious hostile work environment claims. (See Doc. 36 at 27 (citing Doc. 29 at n.6)). In order [t]o establish a prima facie Title VII claim for hostile work environment based on religious harassment, a plaintiff must establish: (1) that [s]he belongs to a protected group; (2) that [s]he has been subject to unwelcome harassment; (3) that the harassment was based on [her] religion; (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) a basis for holding the employer liable. Page 18 of 34 Lara v. Raytheon Tech. Serv. Co., LLC, 476 F 218, 220-21 (11th Cir. 2012) (per curiam) (unpublished)14 (citing Mendoza, 195 F.3d at 1245)). Plaintiff alleged the following incidents of misconduct to support her religious harassment claim: two or three occasions when Patterson jokingly referred to her (Doc. 32-3, Pl. Dep. at 145-48); two or three occasions when Patterson joked about how long Baptist 15 preachers would conduct church services (id. at 148); and one occasion when Patterson joked that Baptist and asked Plaintiff if she brought him anything out of the collection plate (id. at 144-49). Even when considered in a light most favorable to her, the facts asserted by Plaintiff do not rise to the level of severe or pervasive harassment on account of the fact that she is a Christian Baptist. The Eleventh Circuit has held significantly more egregious conduct insufficient to establish a religiously hostile work environment claim. See, e.g., (per curiam) 14 15 onsidered binding precedent, but they may be cited as -2. Plaintiff alleged Patterson implied he was superior because of his Catholic faith. (Doc. 1 at 4.) Page 19 of 34 (holding that a Muslim employee was not subjected to religious harassment when his - radio and intercom, and supervisors asked him about his religion and made comments about his dietary restrictions, because such comments were at most insensitive and rude, and did not amount to severe or pervasive harassment that is ); Alansari v. Tropic Star Seafood, Inc. 902, 905 (11th Cir. 2010) (finding comments that included solicitations to go to church other comments about Muslim religion, and the playing of Christian music on the radio-may have been unwanted and even derogatory, but [] did not rise to a threatening or humiliating level ); Richardson v. Dougherty Cty., Ga. 785, 790-91 (11th Cir. 2006) (rejecting Title VII hostile work environment claim where supervisor about his religion and request for accommodation); Jones v. United Space Alliance, x 52, 55-56 (11th Cir. 2006) (dismissing religious hostile work environment claim where complained-of conduct including a manager telling plaintiff not to leave his Bible on his desk and to turn down religious music Page 20 of 34 pervasive). Plaintiff has not established that the alleged conduct rises to the level of severe or pervasive harassment. Accordingly, summary judgment is due to be granted on II religious hostile work environment claim as to GCHB. 4) Title VII retaliatory discharge claim Retaliation claims that rely on circumstantial evidence are analyzed using the burden-shifting paradigm established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973). See Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009). Under the McDonnell Douglas framework, the plaintiff first bears the burden of establishing her prima facie case. To make out a prima facie case of retaliation, a suffered a materially adverse action, and there was some causal relation between the two events. Goldsmith v. Bagby Elevator Co., Inc. 513 F.3d 1261, 1277 (11th Cir. 2008). Once the plaintiff has demonstrated her prima facie case, McDonnell Douglas Denney v. City of Albany, Page 21 of 34 produced, a plaintiff then has the ultimate burden of proving the reason to be a Id. i. Prima Facie Case There is no dispute that Plaintiff suffered a materially adverse employment action she was terminated. Consequently, the two prongs Plaintiff must establish are that she engaged in statutorily protected activity and there was a causal connection between that activity and her termination. GCHB cites Jeronimus v. Polk Cty. Opportunity Council, Inc., in which the Eleventh Circuit held that a and and working did not amount to protected c where it was [the to argue that Plaintiff cannot establish her prima facie case because there is no evidence that she engaged in protected conduct in close temporal proximity to her termination. Similarly, 16 October 6th written complaint,16 (See Doc. 32-2 at 166.) Page 22 of 34 319, 326 (11th Cir. 2005). letter17 to GCHB make no reference to any protected category. Plaintiff alleges that she made complaints to other people18 at various times during her employment. In her deposition testimony, Plaintiff testified that she lodged complaints with both Cameron and Patterson showing protected activity.19 However, she does not proffer sufficient evidence showing those complaints were close in proximity to her termination. As such, Plaintiff cannot prove her retaliation claim. To establish the causal link required as part of her prima facie case, [the plaintiff] need only establish that the protected activity and the adverse action were not wholly unrelated. Taylor v. Runyon, 175 F.3d 861, 868 (11th Cir. 1999) (quoting Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993) (internal quotations omitted) 17 (See Doc. 32-1 at 19-20.) sex or religion (or any other protected category). 18 Pinnia Hines, then Assistant Director of Nursing, testified that Cockrell confided in her about the way Patterson was treating her in the work place specifically about how it bothered Plaintiff (Doc. 39-2, Hines Dep. at 22-24.) 19 that the protection afforded by the statute is not limited to individuals who have filed formal complaints, but extends as well to those . . . who informally voice complaints to their superiors or internal grievance procedures. Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (citations omitted). Page 23 of 34 evidence that the decision-maker became aware of the protected conduct, and that there was close temporal proximity between this awareness and the adverse Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999). Hidgon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004); but see Williams v. Waste Mgmt. insufficient to prove causal connection). Here, Plaintiff sent the letter complaining of a hostile work environment on October 6th, her attorney sent a letter on October 7th, GCHB sent a response letter on November 16th, the report of the forgery occurred on November 19th, and Plaintiff was terminated December 3, 2015. Plaintiff co -month time lapse does not constitute close 20 20 produced tends to show numerous complaints to other co-workers and board members, and the fact that Patterson had a habit of threatening to terminate female employees. Specifically, Cockrell alleges that she complained to her supervisor, Cameron; fellow employees, Tiffany Grisby, Sandra Root, Tonya Williams, and Pinnia Hines; Page 24 of 34 causation, (Doc. 36 at 29-31) (citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)). Even when viewed in a light most favorable to Plaintiff, the Court does not find that this other evidence creates the requisite causal connection. ii. Legitimate Nondiscriminatory Reason & Pretext Assuming arguendo that Plaintiff made her prima facie case, the burden of production then shifts to GCHB to produce a legitimate, nondiscriminatory reason for firing her. Perryman v. Johnson Prods. Co., Inc. the defendant need not persuade the court that its proffered reasons are legitimate; Id. (quoting Lee v. Russell Cty. Bd. of Educ., 684 F.2d 769, 773 (11th Cir. 1982)). Here, GCHB stated that Plaintiff was terminated upon a good faith belief that she forged another and former or current board members Charles Robertson, Ralph Banks, Loretta Webb, and Sue Vance. (Pl. Dep. at 146, 164, 174, 184-87; Hines Dep. at 22- 23.) Page 25 of 34 21 GCHB has thus met the burden of production. The burden therefore shifts back to Plaintiff to show that proffered reason is mere pretext for unlawful retaliation. See Turlington v. Atlanta Gas Light Co. directly by persuading the court that a discriminatory reason more likely motivated Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 Kragor, 702 F.3d at 1310 11. Plaintiff must Cameron also testified that there were numerous occasions of questionable and deceptive behavior by Plaintiff which bolstered her belief that Plaintiff did indeed forge the document. (See supra Section I. Background at 5-7.) 21 Page 26 of 34 Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). To show pretext, Plaintiff first points to the allegedly suspicious22 timing of her termination. Cockrell, Peebles, and Atkins had already submitted complaints to the Board A month later, in the middle of November, GCHB sent a letter in response asking for more specifics regarding Plaintif s claim.23 Three business days later, Henderson submitted the notice documenting the discovered forgery. Upon her return from vacation, Plaintiff was fired, and she claims that she was not given an opportunity to defend herself. However, Cameron testified, and Plaintiff admitted, that they had at least one meeting regarding the forged document. (Cameron Dep. at 16-17, Pl. Dep. at 233.) Plaintiff also argues the fact that Cameron did not conduct a meaningful investigation to discover who else may have possibly forged the document shows 22 motive, but rather to demonstrate that there is a genuine issue of material fact that the the adverse employment action Rioux v. City of Atlanta, 520 F.3d 1269, 1278 (11th Cir. 2008) (citing Chapman v. Al Transp., 229 F.3d 1012, 1024-25 (11th Cir. 2000)). 23 (Doc. 32-1 at 22.) Page 27 of 34 pretext, citing the known issues between Plaintiff and Henderson.24 (See Cameron Dep. at 19-21; Pl. Dep. 112-13.) Plaintiff proffered evidence that Cameron knew of the hostility between Plaintiff and Henderson who discovered the forgery in addition to the fact that both Cameron and Henderson would have also had access to the allegedly forged document based on the nature of their duties. Regardless, the Court finds that the above-discussed evidence is not sufficient to show pretext for terminating Plaintiff none of which were for discriminatory reasons.25 Thus, summary judgment on Title VII retaliation claim is due to be granted. 5) State law claims i. Outrage 24 Cameron knew that Plaintiff and Henderson did not get along. (Pl. Dep. at 112-13; Cameron Dep. at 28-30.) Henderson allegedly had to be pulled away from desk a few times to avoid a physical altercation. (Pl. Dep. at 112.) On one of these occasions, Plaintiff informed Cameron Dep. at 11213; January 6, 2014 email, Doc. 32-7.) 25 See Flowers v. Troup Cty. to fire their employees for a good reason, a bad reason, a reason based on erroneous facts, or for no r quotations omitted). Page 28 of 34 applies to only three kinds of conduct: (1) wrongful conduct regarding burial matters; (2) barbaric methods used to coerce an insurance settlement; and (3) egregious sexual harassment. Stancombe v. New Process Steel LP 740 (11th Cir. 2016) (citing 729, Rear v. B.H., 69 So. 3d 106, 118 (Ala. 2011) abrogated on other grounds by Ex Parte Vanderwall, 201 So. 3d 525 (Ala. 2015)). Indeed, tort of outrage26 he and so should not be the basis for vicarious or respondeat superior liability except in the Busby v. Truswal Sys. Corp., 551 So. 2d 322, 327 (Ala. 1989) (citing Am. Road Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980)). No such compelling circumstances exist on these facts, even when they are construed in a light most favorable to Plaintiff. As such, summary judgment is due ii. Negligent training, supervision, and retention In Alabama, in order to survive summary judgment on a claim for negligent or wanton supervision, Plaintiff must offer substantial evidence of three elements. 26 See infra, Section B. at 31-32 (Discussing the tort of outrage in Alabama in more detail). Page 29 of 34 The first element requires a showing that Patterson committed a tort recognized under Alabama law. Second, Plaintiff must show that GCHB had either actual or constructive notice of Patters conduct. Armstrong Bus. Servs. v. AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001). This second element can be shown either through knowledge of Patters incompetence or unfitness for the position. Mardis v. Robbins Tire & Rubber Co., 669 So. 2d 885, 889 (Ala. 1995); see also Gilmer v. Crestview Mem. Funeral Home, Inc., 35 So. claim of negligent supervision, a plaintiff must show that the employer knew, or in the exercise of ordinary care should have known, that its employee was in Armstrong, 817 So. 2d at 682) (emphasis added)). For the third and final element, Plaintiff must show that GCHB failed to adequately respond to the notice. Armstrong, 817 So. 2d at 682; see also Edwards v. Hyundai Motor Mfg. Ala., LLC, 603 F. Supp. 2d 1336, 1357 (M.D. Ala. 2009). The of carelessness and incompetency of a certain character are shown on the part of the servant, to leave it to the jury to determine whether they would have come to Mardis, 669 So. 2d at 889. Page 30 of 34 when the employer either intended, or negligently permitted, the tortious conduct employer knew or should have known about the harassment and failed to take Dees v. Johnson Controls World Servs., Inc., 168 F. 3d 417, 421 (11th Cir. 1999); see Univ. Fed. Credit Union v. Grayson, 878 So. 2d 280, 291 (Ala. 2003) underlying wrongful condu . In her reply brief, Plaintiff alleges that she specifically complained to relationship betwee instances and others alleged by Plaintiff are not sufficiently frequent to show underlying wrongful conduct. Plaintiff provided other record evidence27 to show 27 Charles Robertson, who was a board member during the time of Plaintiff's employment with GCHB testified that Peebles, Atkins, and Cockrell all directly told him, on several occasions, that Patterson was disrespectful to women and that he used intimidation and bullying in the that is something that has echoed in the walls of t Id. at 68.) Additionally, he believed there needed to be an objective investigation or hearing by GCHB regarding allegations Page 31 of 34 that GCHB either was on notice or could incompetence, and failed to take remedial action. The Court finds that this evidence would allow Plaintiff to satisfy elements two and three required for negligent, hiring, supervision and retention: notice and failure to respond. However, Plaintiff has failed to demonstrate the first required element, which is a required tort. As referenced above and discussed in more detail below, Plaintiff has failed to present evidence sufficient to allow her outrage claim to proceed to a jury. Additionally, she has not averred any other specific Alabama tort or any allegations agent (Patterson). Accordingly, summary judgment is appropriate for this claim and is due to be s inappropriate administration style in financial matters and his treatment of female employees. (Id. at 14-15, 33-36, 68with the lack of objectivity within GCHB. (Id. at 36.) Additionally, Vance, the chairwoman of doing nothing in response, only telling Peebles -33.) Additionally, Pinnia Hines, who was a nurse until her retirement in February of 2015 and is now a GCHB board member board member, Henderson voiced complaints about Patterson specifically that he had threatened to demote her and was treating her unfairly. Henderson sent Hines a letter, which she forwarded to the chairman of GCHB. (Hines Dep. at 28-30.) Page 32 of 34 B. PATTERSON S MOTION FOR SUMMARY JUDGMENT otion for summary judgment, Plaintiff ainst Patterson under Title VII but holds to her cl As such, the Court will address the state law claims asserted against Patterson. Plaintiff sexually and religiously harassed Ms. Cockrell and is thus liable for the tort of However, she has submitted no evidence showing the severity of her emotional distress such as evidence of medical treatment or medication. (Pl. Dep. 241-245.) Such generalized testimony is not sufficient to show severe emotional distress. See State Farm Auto. Ins. Co. v. Morris, 612 So. 2d 440, 445 (Ala. 1993) (holding that evidence indicating that plaintiff suffered some emotional distress not sufficient). In Alabama, the torts of intentional infliction of emotional distress and outrage are synonymous. Ex parte Crawford & Co., 693 So. 2d 458, 460 (Ala. 1997). To bring a successful action prove (1) that the defendant's conduct was intentional or reckless; (2) that it was extreme and outrageous; and (3) that it caused emotional distress so severe that no Page 33 of 34 Id. The tort is limited to Little v. Robinson insults, indignities, threats, annoyances, petty oppressions, or other trivialities parte Bole, 103 So. 3d 40, 52 (Ala. 2012). Viewing the evidence in the light most favorable to the non-movant, Plaintiff fails to allege any conduct amounting to the severity necessary to establish a claim for outrage. Thus, summary jud on this claim. IV. CONCLUSION For the reasons stated above, G motion is due to be GRANTED and otion is due to be GRANTED. An Order consistent with this Memorandum of Opinion will be entered contemporaneously herewith. DONE and ORDERED on April 4, 2018. _____________________________ L. Scott Coogler United States District Judge 190685 Page 34 of 34
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