MEMORANDUM OPINION AND ORDER
ANDREW L. BRASHER, District Judge.
This matter comes before the Court on Defendant Koch Foods of Alabama, LLC's ("Ala-Koch") motion (Doc. 226) to amend the Court's summary judgment order. (Doc. 225). Ala-Koch is correct that the Court overlooked Plaintiff's state-law claims against it, and summary judgment is due to be granted on those claims. Summary judgment is due to be denied as to punitive damages and Plaintiff's retaliation claim.
A. State Law Claims
Ala-Koch argues that summary judgment is due in its favor as to all of Plaintiff's state law claims: Count 1, Count II, Count III, and Count IV.
Because the Court entered summary judgment in favor of McDickinson on Plaintiff's claims for Invasion of Privacy and Outrage, summary judgment is due in favor of Ala-Koch as well for the same reasons.
Although the Court denied McDickinson's motion for summary judgment on Plaintiff's assault and battery claim, Ala-Koch argues that summary judgment is due in its favor. "An employer is liable for the intentional torts of its employee if: (1) the employee's acts are committed in furtherance of the business of the employer; (2) the employee's acts are within the line and scope of his employment; or (3) the employer participated in, authorized, or ratified the tortious acts. Potts v. BE&K Constr. Co., 604 So.2d 398, 400 (Ala.1992)." Ex parte Atmore Cmty. Hosp., 719 So.2d 1190, 1194 (Ala. 1998). "[W]here a co-employee defendant's behavior is aimed at `satisfying [the co-employee's] own lustful desires,' [the Eleventh Circuit] has held that `no corporate purpose could conceivably be served.' Busby, 551 So.2d at 327." Id. The allegations in this case are clearly on-point with Busby. However, "[a]n employer is also liable for the intentional torts of the employee if the employer ratifies the employee's conduct. Potts, 604 So.2d at 400. An employer ratifies conduct if: (1) the employer has actual knowledge of the tortious conduct; (2) based on this knowledge, the employer knew the conduct constituted a tort; and (3) the employer failed to take adequate steps to remedy the situation. Id." Ex parte Atmore, 719 So. 2d at 1195. In this case, although there is evidence that HR employees reported to members of management that McDickinson was engaging in sexually inappropriate conduct, Plaintiff has not offered evidence that he or any other employee complained that her conduct was assault and battery against him. There is no evidence before the Court that supports an inference that Ala-Koch had actual knowledge of assault and battery. Accordingly, Ala-Koch's motion for summary judgment on assault and battery is due to be granted in its favor.
Ala-Koch argues that summary judgment is due in its favor as to Plaintiff's Negligent/Wanton Supervision, Training, and Retention claim. In order to establish a claim against an employer for negligent supervision, training, and/or retention, Plaintiff must establish that McDickinson, as the allegedly incompetent employee, committed a common-law Alabama tort. Stevenson v. Precision Standard, Inc., 762 So.2d 820, 824 (Ala. 1999) (citing Big B, Inc. v. Cottingham, 634 So.2d 999 (Ala. 1993)). In this case, the only state law tort remaining is assault and battery as to McDickinson. Plaintiff has offered no evidence that Ala-Koch knew or should have known that McDickinson was likely to commit assault and battery or that Ala-Koch failed to properly train her not to commit assault and battery. Because there is no evidence that Plaintiff made a complaint of assault and battery to anyone at Ala-Koch, Plaintiff has failed to supply a factual basis that Ala-Koch negligently retained McDickinson after the alleged battery. Accordingly, Ala-Koch's motion for summary judgment is due to be granted as to Plaintiff's Negligent/Wanton Supervision, Training, and Retention claim.
B. Punitive Damages
An employee who has been the victim of intentional employment discrimination in violation of Title VII may recover punitive damages from the employer "if [he] demonstrates that the [employer] engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b). Ala-Koch argues that Plaintiff cannot meet this standard as a matter of law because it "affirmatively established it exercised reasonable care to prevent and correct discriminatory behavior in the workplace." (Doc. 226 at 8). However, despite Ala-Koch's written policies, there is a genuine issue of material fact whether Ala-Koch made a good faith effort to comply with Title VII and whether it knew of and failed to prevent or correct discrimination against Plaintiff. For example, Plaintiff presents substantial evidence of widespread, flagrant misconduct by the leadership of Ala-Koch's local HR Department—i.e. the very employees who would enforce Ala-Koch's anti-discrimination policies—including at least one time when an employee allegedly complained to the Corporate Director of Human Resources who then merely referred the complaint back to local HR to investigate. See Doc. 196 at 15. Ala-Koch's motion is due to be denied on this issue.
C. Retaliation Claims
As to the retaliation claim, Ala-Koch argues that Plaintiff's "email did not mention race discrimination and the unrefuted record evidence establishes he did not have an objectively reasonable belief race discrimination was occurring, as a matter of law, Fuller cannot establish he engaged in protected activity." Ala-Koch's argument ignores that the evidence is to be construed in the light most favorable to the non-moving party. Further, this Court's denial of summary judgment on that issue was without prejudice specifically because "the question whether HR employees are covered by retaliation protection when they raise claims on behalf of other employees and whether they can still be fired for the manner in which they raise those claims is currently pending before the en banc Eleventh Circuit. See Gogel v. Kia Motors Mfg. of Georgia, Inc., 904 F.3d 1226, 1237 (11th Cir. 2018), reh'g en banc granted, opinion vacated, No. 16-16850, 2019 WL 2498915 (11th Cir. June 17, 2019)." Ala-Koch argues that the outcome in Gogel will be irrelevant, but the Court is disinclined to speculate about the likely reasoning of an en banc Eleventh Circuit opinion. Ala-Koch is reminded that "[t]his issue may be addressed again, if appropriate, after the Eleventh Circuit decides Gogel." (Doc. 225 at 14).
III. Conclusion
Based on the foregoing, it is
ORDERED that Defendant Ala-Koch's Motion to Amend the Court's Summary Judgment Order (Doc. 226) is GRANTED IN PART as to Plaintiff's state law claims Count I, Count II, Count III, and Count IV. It is DENIED as to all other requested relief.
DONE and ORDERED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.call.uscourts.gov Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
