SMITH, District Judge.
If the regional manager of a national food chain directs the manager of a restaurant under his supervision to hand over her keys to the workplace,
The factual scenario sketched in the preceding paragraph presents the most interesting question raised in this case: an action in which plaintiff alleges that her former employer violated Title VII of the Civil Rights Act of 1964 by twice failing to promote her to a General Manager position because of her sex,
This opinion addresses defendant's motion for summary judgment;
Federal Rule of Civil Procedure 56 provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
"In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1983). Moreover,
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that the determinative question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").
The defendant, Logan's Roadhouse, Inc., is headquartered in Nashville, Tennessee, and the company operates more than 180 company-owned "Logan's Roadhouse"® restaurants in twenty-three states, including Logan's Roadhouse #312 in Florence, Alabama, as well as supervising the operations of 26 franchisee-owned restaurants serving moderately-priced food under that same tradename.
Plaintiff alleges that she lodged complaints about the conduct of two employees, Peter Austin and Thomas Moody, that she perceived as sexual harassment. Peter Austin was the "Kitchen Manager" of Roadhouse #312.
Thomas Moody was the second employee about whom plaintiff complained. He was an hourly-wage employee in the Florence Roadhouse who initially was hired as a server, but later had bartender functions added to his serving duties.
It is not disputed that defendant prohibited discrimination, harassment, and retaliation in the workplace, and provided several mechanisms for employees to report any alleged incidents of such misconduct.
Before actually beginning her employment for defendant, plaintiff was required to attend a two-week orientation during which she was trained on defendant's policies and procedures, including those outlined in the foregoing quotations from the defendant's "Restaurant Management Handbook."
In order to provide a workplace that was "free from actual or perceived conflicts of interest or favoritism caused by dating or other relationships that occur between people in the workplace," defendant also "
Defendant additionally provided "both a 1-800 Hotline and a direct dial extension to report any compensation and pay issues."
In response to the uncontested fact that "Plaintiff did not call the corporate Hotline to report any complaints of discrimination, harassment, retaliation, or compensation issues,"
Jim Edwards resigned as General Manager of defendant's Florence Roadhouse at the end of July 2008.
Kuehnhold awarded the position to Luking.
Prior to the selection of Luking as General Manager of the Athens Roadhouse, he had been General Manager of the Logan's restaurant in Decatur, Alabama.
Plaintiff said that, after Hank Luking was made General Manager of Restaurant #312 in Florence, she expressed an interest in being promoted to the Athens General Manager position vacated by his transfer,
Plaintiff's starting salary was $37,000 annually.
The events leading to the end of plaintiff's employment began, according to her narrative, before Jim Edwards resigned as General Manager of the Florence Roadhouse. She alleges that Edwards met in June of 2008 with Julian Ordonez, the manager of a Florence sports bar and grill named "Sidelines," and concocted a plan for Ordonez to cause plaintiff to be fired by lodging a false complaint with defendant's corporate headquarters about plaintiff's alleged "unprofessional conduct" while in the Sidelines bar.
Furthermore, according to Rodriguez, "[a]t about the same time" as the foregoing report, "Logan's also received information that Plaintiff was fraternizing with hourly employees — whom she supervised — outside of work."
Consequently, Rodriguez says that he "visited Restaurant #312 on or about July 10, 2008 to discuss [both] complaints with Plaintiff," and that he "placed Plaintiff on a Final Written Warning for unprofessionalism."
Those were not the events that immediately preceded the end of plaintiff's employment, however. Instead, on or about August 4, 2008, Thomas Moody, the hourly-wage employee who was the subject of the sexual harassment complaint that plaintiff had assisted Ginger Thompson to file sometime prior to September of 2006,
A copy of Moody's letter, together with a group of six photographs depicting plaintiff in social situations with other employees,
In any event, a copy of Moody's letter and the photographs depicting plaintiff in social situations with hourly employees became the focus of questions that Rodriguez asked plaintiff during a conference held in the Florence Roadhouse on August 25, 2008.
Rodriguez handed the photographs to plaintiff, and asked her a series of questions about both the scenes depicted in the pictures and the accusations contained in Moody's letter.
A common element of all Title VII disparate treatment and retaliation claims is "some form of legally cognizable
The major premise of defendant's motion for summary judgment — indeed, the metaphorical linchpin upon which all other arguments hinge — is the contention that plaintiff "did not suffer any adverse employment action. Plaintiff voluntarily resigned from her employment at Logan's, and her claim that she was `discharged' is baseless."
Defendant's reliance upon the Eleventh Circuit's decision in Ross v. City of Perry, 396 Fed.Appx. 668 (11th Cir.2010), as the basis for its argument that plaintiff's "resignation was not involuntary, and therefore it was not an adverse employment action under Title VII,"
In contrast, the present case raises a much more interesting issue; that is: when an Alabama private employer, who can fire an employee for any reason — a good reason, a bad reason, or no reason at all, so long as the basis for termination is not a violation of federal employment discrimination statutes — acts in a manner that communicates to a reasonably prudent employee that she is about to be terminated, and the employee subsequently resigns, does that amount to either a "constructive discharge," or an "adverse employment action" that rises to the level of an actual termination?
Federal circuit courts of appeals tend to view cases that present such fact patterns in subtly but, nevertheless, substantively different manners. Some circuits analyze such factual scenarios as if they were a sub-category of "constructive discharges," while other circuits treat them as if they amount to an "actual discharge." The Seventh Circuit, for example, has held that, "[w]hen an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns, the employer's conduct may amount to [a] constructive discharge." Equal Employment Opportunity Commission v. University of Chicago Hospitals, 276 F.3d 326, 332 (7th Cir.2002) (alteration supplied, footnote omitted) (citing, e.g., Bragg v. Navistar International Transportation Corp., 164 F.3d 373, 377 (7th Cir.1998) ("Constructive discharge exists to give Title VII protection to a plaintiff who decides to quit rather than wait around to be fired.")). See also, e.g., Hunt v. City of Markham, Illinois, 219 F.3d 649, 655 (7th Cir.2000) ("A person who is told repeatedly that he is not wanted, has no future, and can't count on ever getting another raise would not be acting unreasonably if he decided that to remain with this employer would necessarily be inconsistent with even a minimal sense of self-respect, and therefore intolerable.").
The Second and Eighth Circuits, on the other hand, have characterized fact patterns that would lead a reasonably prudent person to believe that her tenure had been terminated as an "actual termination." See Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 88 (2nd Cir. 1996) ("An actual discharge ... occurs when the employer uses language or engages in conduct that `would logically lead a prudent person to believe his tenure has been terminated.'") (quoting National Labor Relations Board v. Trumbull Asphalt Co. of Delaware, 327 F.2d 841, 843 (8th Cir.1964) (Blackmun, J.) (holding that "[t]he fact of discharge ... does not depend on the use of formal words of firing. It is sufficient if the words or actions of the employer `would logically lead a prudent person to believe his tenure had been terminated.'") (quoting Putnam v. Lower, 236 F.2d 561, 566 (9th Cir.1956))).
The Eleventh Circuit fits into the cleavage between the conflicting positions sketched above, and holds that circumstances like those described require an "analysis of the employer's intent" — an inquiry into the totality of circumstances that "must be undertaken with close scrutiny of the evidence in each case." Thomas v. Dillard Department Stores, Inc., 116 F.3d 1432, 1434, 1435 (11th Cir.1997). The Thomas panel approvingly cited opinions of the former Fifth Circuit and the Second and Fourth Circuits: i.e., Payne v. Crane Co., 560 F.2d 198, 199 (5th Cir.1977) (holding that an actual discharge occurs when an employer "by acts or words, shows a clear intention to dispense with the services
In short, within the Eleventh Circuit, "[t]he proper legal standard requires analysis of the employer's intent, which may be inferred not only from words but also from conduct, as well as the specific circumstances of the challenged job action." Thomas, 116 F.3d at 1437 (emphasis supplied); see also Luna v. Walgreen Co., 347 Fed.Appx. 469, 473 (11th Cir.2009) (same). "[I]t is also clear in light of the case law that the lack of specific words [e.g., `you are fired'] is not dispositive." Thomas, 116 F.3d at 1437 (emphasis and alteration supplied) (citing Chertkova, 92 F.3d at 88, and Service News, 898 F.2d at 962).
For example, in the former Fifth Circuit's opinion in National Labor Relations Board v. Ridgeway Trucking Co., 622 F.2d 1222 (5th Cir.1980), the only issue was whether the employer's General Manager had terminated the employment of striking truck drivers when telling the drivers that "if they were not going to go to work they should leave the property," and that "if they did not leave the premises, he would have to call the authorities." Id. at 1223. The former Fifth Circuit held, in an opinion still binding on this court, that "[a]n employer need not use the term `fired' in order for a discharge to occur. The test of whether an employee was discharged depends upon the reasonable inference that the employees could draw from the language used by the employer." Id. at 1224 (emphasis supplied) (citing Liberty Mutual Insurance Co. v. National Labor Relations Board, 592 F.2d 595, 604 (1st Cir. 1979); The C.J. Krehbiel Co., 227 N.L.R.B. 383, 384 (1976)).
Even that benign account of the words spoken in plaintiff's last meeting does not support defendant's major premise. Rather, viewing that chronicle, as this court must, in the light most favorable to plaintiff, the non-moving party, and, reading it in conjunction with plaintiff's testimony that Rodriguez either asked for, or demanded that she hand-over, her keys to the restaurant,
In discharge situations, courts generally require a plaintiff to demonstrate that: (1) she was a member of a class of persons protected by Title VII; (2) she was qualified for the position from which she was discharged; (3) despite her qualifications, she was discharged; and (4) following the termination of her employment, the defendant either replaced plaintiff with someone outside the protected class, or retained other employees who were not within the protected class and who possessed comparable or lesser qualifications.
Shifting the frame of reference slightly, the Eleventh Circuit has sometimes held that a plaintiff seeking to make out a prima facie case of disparate treatment discrimination in the termination of his or her employment "must generally show that (1) plaintiff is a member of a protected class; (2) plaintiff suffered an adverse employment action; (3) the employer treated similarly situated employees outside of the protected class more favorably; and (4) plaintiff was qualified to do the job." Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir.2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001)); see also, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). That is the formulation which will be applied here; and, in doing so, the only element requiring discussion is the third: whether defendant treated similarly-situated male employees more favorably.
Some binding authorities have allowed the third element of the applicable prima facie formulation to be satisfied upon a showing "that the misconduct for which [the plaintiff] was discharged was nearly identical to that engaged in by a male employee whom [the employer] retained." Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. Unit B 1982)
Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir.1999) (emphasis supplied).
Thus, plaintiff must show that male employees of defendant were guilty of the same, or "nearly identical," misconduct, yet were not terminated, or were disciplined in different ways. Id.; see also, e.g., Silvera v. Orange County School Board, 244 F.3d 1253, 1259 (11th Cir.2001) ("The most important factors in the disciplinary context ... are the nature of the offenses committed and the nature of the punishments imposed."). "Absent some other similarly situated but differently disciplined worker, there can be no disparate treatment." Abel v. Dubberly, 210 F.3d 1334, 1339 (11th Cir.2000).
Prior to asking plaintiff for her keys, David Rodriguez told her that she was under investigation for violation of defendant's anti-fraternization policy. In response to the motion for summary judgment, plaintiff alleges that Rodriguez was himself guilty of violating the same policy. She presented a photograph depicting Rodriguez embracing Lindsey Nichols, the hostess of Restaurant #312, whose head is nuzzled on his left shoulder.
She also alleged that she had personally observed Rodriguez "hugging all over" the female bartenders of Logan's Decatur Roadhouse,
Rodriguez is not a fair comparitor. The fraternization allegedly engaged in by him is different from plaintiff's, because the gravamen of Thomas Moody's complaint was that plaintiff rewarded the hourly employees with whom she socialized, whereas plaintiff presented no evidence that Rodriguez exhibited favoritism in the assignment, schedule, or promotion of any female employees who allegedly became the subject of his attention.
Plaintiff alternatively contends that she was fired in retaliation for her protected activities.
Generally speaking, a plaintiff must satisfy three elements in order to establish a prima facie case of retaliation: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) there was a causal linkage between the protected conduct and the adverse employment action. See, e.g., Shannon v. Bellsouth Telecommunications, Inc., 292 F.3d 712, 715 (11th Cir. 2002); Bass v. Board of County Commissioners, 256 F.3d 1095, 1117 (11th Cir. 2001); Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 507 (11th Cir.2000). "If the plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate a legitimate reason for the adverse action." Hurlbert v. St. Mary's Health Care System, Inc., 439 F.3d 1286, 1297 (11th Cir. 2006). If the defendant does so, the plaintiff must then show that the defendant's proffered reason for the adverse action is a pretext for retaliation. See id.
The third prima facie element is the only one requiring discussion.
The demonstration of a casual linkage at the summary judgment stage is far less onerous than proving causation by a preponderance of the evidence at trial. At the summary judgment stage, "a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated." Meeks v. Computer Associates International, 15 F.3d 1013, 1021 (11th Cir.1994) (quoting Equal Employment Opportunity Commission v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir.1993)).
Conversely, when there is an extended period of time between the protected activity and the adverse action, the less likely it becomes that a causal linkage between the two events will be found. Indeed, as the Supreme Court has observed, the temporal gap must be "very close" in order to support the conclusion of a causal linkage. Clark County School District v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam) (quoting O'Neal v. Ferguson Construction Co., 237 F.3d 1248, 1253 (10th Cir.2001), and also citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997), and Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir.1992), for the proposition that three- and four-month gaps, respectively, between an employer's knowledge of protected activity and an adverse employment action are not sufficiently close to serve as circumstantial evidence of a causal relationship between the two events).
The pertinent question in a case such as this one, where there is no evidence directly linking plaintiff's protected activities to the termination of her employment, is: "How long is too long?" The Eleventh Circuit has held that a temporal gap of only one month between the plaintiff's act of filing an EEOC charge alleging that her employer denied her a sales representative position because of her sex and subsequent termination of the plaintiff's employment was sufficiently close to establish a causal nexus. Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir.1986) ("The short period of time ... between the filing of the discrimination complaint and the plaintiff's discharge belies any assertion by the defendant that the plaintiff failed to prove causation."). On the other hand, the Supreme Court has held that a temporal gap of twenty months "suggests, by itself, no causality at all." Breeden, 532 U.S. at 274, 121 S.Ct. 1508.
Here, the event that proximately caused David Rodriguez to initiate an investigation into plaintiff's alleged violations of defendant's anti-fraternization policy was the letter that Thomas Moody mailed on or after August 4, 2008. Significantly, however, plaintiff's acts of assisting Ginger Thompson to draft and lodge a formal written complaint about Moody's sexual harassment, and plaintiff's hand-delivery
Plaintiff also testified that she complained to David Rodriguez about Moody's sexual harassment of female employees, and that her termination was in retaliation for those complaints.
Plaintiff's failure to promote claims grow out of the fact that she was twice passed-over for promotion to General Manager positions: first, when defendant transferred Hank Luking from its newly-opened, Athens Roadhouse facility to Roadhouse #312 in Florence, following Jim Edwards's resignation; and, second, when Nykael Stewart was named as Luking's replacement in Athens.
A plaintiff who asserts that an employer violated federal employment discrimination statutes by failing to promote her must satisfy four prima facie elements: (1) she is a member of a protected group; (2) she applied for, and was qualified to fill, a position for which the defendant was accepting applications; (3) despite her qualifications, she was rejected for promotion; and (4) after plaintiff's rejection, the employer either kept the position open, or filled it with a person outside her protected class. See, e.g., Walker v. Mortham, 158 F.3d 1177, 1179 n. 2, 1185-93 (11th Cir.1998) (explaining that a plaintiff need not introduce evidence of the relative qualification of the person promoted instead of plaintiff as part of her prima facie case for failure to promote). The issues with respect to both of plaintiff's failure to promote claims are the same and, thus, the court will analyze the prima facie elements simultaneously.
It is not disputed that plaintiff, as a female, is a member of a class protected by Title VII, or that she was twice passed-over for promotion, or that each promotion was awarded to a male. Thus, defendant's motion for summary judgment pivots upon the second element, and the question of whether plaintiff was qualified to fill the promotional positions she sought.
David Rodriguez testified in the following passages from his Declaration that he
As previously noted in Part II(E) of this opinion, plaintiff denies that Rodriguez met with her on July 10, 2008, and she "adamantly" denies that he issued her a "Final Written Warning."
Defendant's alternative response is, at best, confusing. Defendant argues that plaintiff "cannot show she was similarly situated to either of [the] individuals" promoted instead of her:
When an employer offers as its reason for not promoting a plaintiff the assertion that the person who was promoted was "more qualified," and the plaintiff responds by asserting that she was equally or more qualified than the person promoted, the plaintiff can survive summary judgment only if the "disparities in qualifications [are] of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question." Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir.2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006); see also Ash, 546 U.S. at 456-58, 126 S.Ct. 1195.
Without any question, Hank Luking had significant experience as a General Manager of at least two other restaurants owned and operated by defendant (e.g., the Decatur and Athens facilities), while plaintiff had never served as the permanent General Manager of a "Logan's Roadhouse" restaurant.
In short, Luking clearly was more qualified for the positions sought by plaintiff, and plaintiff has hardly demonstrated "disparities in qualifications [that are] of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question." Cooper, 390 F.3d at 732. Because plaintiff fails to present evidence sufficient to create a triable issue as to pretext, summary judgment is due to be entered in favor of defendant on plaintiff's claims related to the promotional positions awarded to Hank Luking.
That conclusion does not end the discussion of plaintiff's failure to promote claims, however. The court now must address defendant's asserted, non-discriminatory reason for promoting Nykael Stewart to General Manager of its Athens Roadhouse, following Luking's transfer to Florence.
Defendant's brief asserts that Stewart was promoted because he was Assistant General Manager of the Athens restaurant at the time of Luking's transfer.
On a motion for summary judgment, the defendant must clearly set forth through the presentation of evidence the reason(s) for a plaintiff's rejection. See, e.g., St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ("Thus, the McDonnell Douglas presumption places upon the defendant the burden of producing an explanation to rebut the prima facie case — i.e., the burden of `producing evidence' that the adverse employment actions were taken `for a legitimate, nondiscriminatory reason.'") (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (emphasis added). Thus, a reason asserted only in a defendant's brief, and never asserted in or supported by the evidentiary record, is not sufficient to meet the defendant's burden. Because defendant has failed to present evidence demonstrating that the non-discriminatory reason asserted in its brief was the actual reason for promoting plaintiff, it failed to satisfy the second step of the McDonnell Douglas framework. Thus, summary judgment is due to be denied on plaintiff's claim that she was discriminated against when defendant promoted Nykael Stewart, rather than her, to the position of General Manager of Logan's Athens Roadhouse restaurant.
The Equal Pay Act was enacted in 1963, and made part of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., under which it has been administered and enforced. The text of the statute prohibiting discrimination in the payment of wages on the basis of an employee's sex provides, in relevant part, that:
29 U.S.C. § 206(d)(1) (emphasis supplied). An employee establishes a prima facie Equal Pay Act claim by "showing that [her] employer paid employees of opposite genders different wages for equal work for jobs which require `equal skill, effort, and responsibility, and which are performed under similar working conditions.'" Steger v. General Electric Co., 318 F.3d 1066, 1077-78 (11th Cir.2003) (quoting Irby v. Bittick, 44 F.3d 949, 954 (11th Cir.1995)); see also Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992) ("A plaintiff suing under the Equal
"Once the employee presents a prima facie case, the employer may avoid liability by proving by a preponderance of the evidence that the pay differences are based on `(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) ... any other factor other than sex.'" Id. at 1078 (quoting 29 U.S.C. § 206(d)(1)).
Id. (bracketed alteration supplied). Then, if the employer satisfies the burden to prove an affirmative defense, the burden shifts back to the plaintiff to "rebut the explanation by showing with affirmative evidence that it is pretextual or offered as a post-event justification for a gender-based differential." Irby, 44 F.3d at 954.
The only male employee plaintiff cites as a relevant comparitor is Peter Austin. Defendant admits, through the declaration of David Rodriguez, that Austin was paid more than plaintiff.
Even assuming that plaintiff established a prima facie Equal Pay Act claim, defendant asserts a factor other than sex to explain the pay differential. Defendant states that Austin was paid more than plaintiff because he had been employed by the company for a substantially longer period of time — three years and eleven months longer.
Even though it is not clear whether plaintiff asserts a gender-based wage-discrimination claim under Title VII, the court will assume that she intended to do so,
As discussed above in relation to plaintiff's Equal Pay Act claim, defendant asserts a legitimate, non-discriminatory reason for paying Austin more than plaintiff (Austin was employed by defendant for a far longer period than plaintiff), and plaintiff presents no evidence to show that defendant's stated, non-discriminatory explanation for the disparity is pretextual. For those reasons, summary judgment is due to be granted in favor of defendant on plaintiff's wage-disparity claim, regardless of whether it is analyzed under the Equal Pay Act or Title VII.
Plaintiff also alleged four state-law tort claims in her complaint: a claim for intentional infliction of emotional distress; another for negligent hiring, training, supervision, and retention; a third for defamation; and, finally, a claim for invasion of privacy. Each is addressed in the remainder of this opinion.
Plaintiff withdrew her claim for intentional infliction of emotional distress (sometimes referred to as Alabama's "tort of outrage") in the brief she filed in opposition to the motion for summary judgment.
Plaintiff contends that she suffered an invasion of privacy and was slandered when Edwards and Ordonez met in the "Sidelines" Bar and Grill during June of 2008,
Liability for defamation under Alabama law hinges upon proof of the following four elements:
McCaig v. Talladega Publishing Co., Inc., 544 So.2d 875, 877 (Ala.1989) (citing Restatement (Second) of Torts § 558 (1977)).
The tort named "invasion of privacy" actually comprises four distinct wrongs under Alabama law: i.e.,
Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705, 708 (1983). Only one of those wrongs is relevant here: "putting the plaintiff in a false, but not necessarily defamatory, position in the public eye." Id.
The Alabama Supreme Court adopted the Restatement of Torts definition of the "false light" variant of the invasion of privacy tort. See Schifano v. Greene County Greyhound Park, Inc., 624 So.2d 178 (Ala. 1993) (applying the Restatement (Second)
Restatement (Second) of Torts § 652E (1977).
Plaintiff's complaint does not allege any specific facts or events as the basis for her defamation or invasion of privacy claims.
Even assuming for the sake of discussion that the conversation between Edwards and Ordonez in the "Sidelines" Bar can form the basis for defamation and invasion of privacy claims, plaintiff failed to show that defendant is liable for the words and conduct of those individuals. Defamation and invasion of privacy are both intentional torts. See, e.g., Serra Chevrolet, Inc. v. Reylander, 975 So.2d 909, 910 (Ala.2007) (referring to defamation and invasion of privacy as "intentional torts") (quoting Potts v. Baptist Health System, Inc., 853 So.2d 194, 195 (Ala. 2002)); Surrency v. Harbison, 489 So.2d 1097, 1101 (Ala.1986) (describing defamation as an intentional tort). And, an employer can be held liable for the intentional torts of its employees only if it is proven that: "(1) the employee's acts [were] committed in furtherance of the business of the employer; (2) the employee's acts [were] within the line and scope of his employment; or (3) the employer participated in, authorized, or ratified the tortious acts." Ex parte Atmore Community Hospital, 719 So.2d 1190, 1194 (Ala.1998) (alterations supplied) (citing Potts v. BE & K Construction Co., 604 So.2d 398, 400 (Ala.1992)).
Here, Ordonez was not defendant's employee and, thus, defendant cannot be liable for his conduct. Additionally, plaintiff presents inconsistent evidence on the critical question of whether the conspiratorial conversation between Edwards and Ordonez in the Sidelines Bar occurred while Edwards still was employed by defendant. Of course, if Edwards was not employed by defendant on the date the alleged conspiracy was hatched, defendant cannot be held liable for his statements and actions at that time. Assuming that Edwards still was employed by defendant, however, the analysis then turns to the issues of whether Edwards's statements and actions were committed in furtherance of defendant's business, whether they were within the line and scope of his employment, or whether defendant participated in, authorized, or ratified the allegedly tortious acts.
"An employee's tortious acts occur within the scope of his employment if the acts are `so closely connected with what the servant is employed to do and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.'" Id. (quoting Prosser & Keeton, The Law of Torts 503 (5th ed.1984)). Here, the conversation did not occur within any of defendant's restaurants, and there is no evidence that it occurred during hours normally worked by Edwards for defendant. See Land v. Shaffer Trucking, Inc., 290 Ala. 243, 275 So.2d 671, 674 (1973) ("Where the servant abandons his master's business for personal reasons, the employment is suspended, and the master is not liable for the negligence of the servant during the suspended employment, and during the time of the servant's departure from the master's business.") (citing Engel v. Davis, 256 Ala. 661, 57 So.2d 76 (1952)). Furthermore, defendant employed Edwards to manage a restaurant, and spreading falsehoods about an employee of his restaurant did nothing to serve that objective.
"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." Ex parte Atmore Community Hospital, 719 So.2d at 1195. Here, there is no evidence that any of Edwards's supervisors knew of the conversation he allegedly had with Ordonez at any time prior to this litigation. Because plaintiff fails to present evidence that the alleged tortious conduct occurred in furtherance of defendant's business, within the scope of Edwards employment, or that defendant ratified the conduct, she cannot establish that defendant is liable for the alleged defamation or invasion of privacy committed by Edwards, and summary judgment is due to be granted on her defamation and invasion of privacy claims.
In Big B, Inc. v. Cottingham, 634 So.2d 999 (Ala.1993), the Alabama Supreme Court recognized a cause of action for negligent or wanton hiring, training, retention, and supervision, and held that an employer (a "master"), is liable for the "incompetency" of his employee (a "servant") when
Id. at 1003 (quoting Thompson v. Havard, 285 Ala. 718, 235 So.2d 853, 858 (1970)). However, not just any "incompetency" suffices to give rise to a cause of action for so-called "negligent hiring, training, retention, and supervision liability." Rather, there must be an underlying common law tort recognized by Alabama courts: that is, in order to prevail, the plaintiff must prove that the allegedly incompetent employee committed a tortious act. See Stevenson v. Precision Standard, Inc., 762 So.2d 820, 824 (Ala.1999) (affirming summary judgment on a negligent supervision and training claim for lack of an underlying tort).
Plaintiff's claim is based upon the assertion that defendant "negligently failed to discipline or terminate those employees who actively harassed and conspired against Andazola," failed to administer its policies against sexual harassment, failed to properly train its employees concerning harassment, and failed to protect plaintiff from harassment.
However, the Alabama Supreme Court has recognized a sexual harassment exception to the requirement that a common law tort must underlie a negligent hiring, training, supervision, and retention claim. The exception provides that "the manner in which a sexual-harassment complaint is handled when sexual harassment has, in fact, occurred c[an] form the basis for a claim for negligent or wanton supervision" when the handling of the complaint did not cause the harassment to cease or caused it to only temporarily cease. Id. at 825 (bracketed alteration supplied); see also Patterson v. Augat Wiring Systems, Inc., 944 F.Supp. 1509, 1528-29 (M.D.Ala.1996); Machen v. Childersburg Bancorporation, Inc., 761 So.2d 981, 986-88 (Ala.1999); Mardis v. Robbins Tire & Rubber Co., 669 So.2d 885, 889-90
Here, plaintiff has presented evidence to show that she was sexually harassed by Austin and Moody. She also presents evidence to show that she complained about the sexual harassment to Rodriguez and Edwards on multiple occasions. She presents evidence that the only actions defendant took to remedy the harassing behavior by Moody was that Edwards spoke to Moody, and no action was taken to remedy the harassing behavior by Austin despite her repeated complaints. Finally, she presents evidence that the harassment perpetrated by Moody and Austin was ongoing throughout her employment despite her complaints and defendant's actions. Based on these facts, plaintiff establishes a claim for negligent hiring, training, retention, and supervision based on the handling of her sexual harassment complaints, and summary judgment is due to be denied on this claim.
Upon consideration of the foregoing issues, defendant's motion for summary judgment is GRANTED IN PART AND DENIED IN PART. Summary judgment is granted on all claims except plaintiff's Title VII disparate treatment claim for denial of her application for promotion to the position of General Manager of the Athens, Alabama "Roadhouse" (the one awarded to Nykael Stewart), and, her state-law "negligent hiring, training, retention, and supervision claim." A pretrial conference and trial date will be set by separate order.
Plaintiff testified that she also complained on unspecified dates to Regional Manager David Rodriguez about Moody's sexual harassment of female employees, see Plaintiff's Depo. at 258-59, but he denied that. See, e.g., Rodriguez Depo. at 40-41; id. at 87 (testifying that he "never received a complaint" from plaintiff or anyone else accusing Moody of sexual harassment); id. at 123-124 (testifying that plaintiff did not testify truthfully when saying that she complained to him about Moody's sexual harassment during the August 25, 2008 conference, just prior to the end of her employment).
Q. Let me ask you this, if Brandy Andazola's testimony is that you told her to report these things to you and not to report to corporate, is she telling the truth or not telling the truth?
* * * *
A. Not telling the truth.
Q. Why?
A. I never made those statements.
Rodriguez Depo. at 70. In fairness to plaintiff, two points should be noted. First, to the extent that her complaints narrowly concerned fraternization and other dating relationships, she may have confused her reporting obligations under the following policy statement: "Any manager who currently or in the future begins a mutually voluntary dating or romantic relationship with an hourly team member must notify the Regional Manager within 14 days." Doc. no. 23-4 (Defendant's Restaurant Management Handbook) at 31 (emphasis supplied). When that policy statement is carefully read, however, it clearly is best construed as a self-reporting requirement, a "safety-valve" that can prevent the discipline or discharge of either the manager or hourly-wage employee, or both. Nevertheless, plaintiff may have misunderstood her obligation under that policy statement and, if she in fact lodged any complaints with Rodriguez — a "fact" that he disputes — she may have mistakenly reported to him as a result of the quoted statement. The second point that must be noted in fairness to plaintiff is that, again, to the extent that her complaints narrowly concerned only fraternization and dating relationships, and if one reviews the full text of the "Dating and Other Relationships" section of defendant's "Restaurant Management Handbook," supra, it will be seen that the reporting requirements of other managers and employees, not involved in the prohibited relationship, are not specified.
Q. All right. Did Mr. Kuehnhold honor your recommendation?
A. Yes, sir.
Q. And Mr. Luking was employed as the GM at [the] Florence Logan's; is that correct?
A. Yes, sir.
Q. Based upon your recommendation?
A. Based upon many facts.
Q. Based upon your recommendation?
A. That was part of our decision. [Emphasis supplied.]
Plaintiff's Depo. at 315 (emphasis and bracketed alterations supplied).
Even so, Federal Rule of Evidence 801(d)(2)(D) provides that a statement made by a party's agent or employee "is not hearsay" if the statement was uttered "on a matter within the scope of that relationship and while it existed."
One prerequisite for the admission of Edwards's alleged statements to Julian Ordonez under Rule 801(d)(2)(D), therefore, is evidence showing that the statements were uttered while Edwards still was employed by defendant: i.e., before the end of July 2008. The record on that issue is neither clear nor consistent.
For example, Bionca Sherrod-Holaday's Declaration states that the conversation between Edwards and Ordonez occurred "[s]hortly before Brandy's employment with Logan's ended" — i.e., August 26, 2008 — which would place the event after Edwards had resigned. Sherrod-Holaday Declaration at 1.
On the other hand, David Rodriguez states in his Declaration that the complaint from the manager of Sidelines was received "[i]n June 2008," which — if true — would place the alleged conspiratorial meeting that precipitated the complaint as occurring before Edwards's resignation. Doc. no. 23-1 (Declaration of David Rodriguez) at 2.
Plaintiff's testimony appears to be consistent with Rodriguez's Declaration. See supra note 67 (quoting from page 315 of plaintiff's deposition).
doc. no. 38-1 (Plaintiff's Declaration), at 5.
Thomas v. Dillard Dept. Stores, Inc., 116 F.3d at 1434 n. 4 (alteration supplied).
Thomas, 116 F.3d at 1434 n. 5 (emphasis and alteration supplied).
Q. What is your recollection of the words Mr. Rodriguez used when you gave him — when he took your keys?
A. "I need your keys."
Q. All right.
A. The actual exchange of the keys, "I need your keys."
. . . .
Q. What led you to say, just several times today, that you were fired? What words were used with you that makes you say you were fired?
A. The action of him asking — or him saying "I need your keys."
Plaintiff's Depo. at 198-199 (emphasis supplied). Plaintiff cannot now create a genuine issue of material fact by submitting a sham affidavit, i.e., an affidavit which, without explanation, directly contradicts her deposition testimony. See Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984) ("When a party has given clear answers to unambiguous questions which negate the existence of a genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit if it merely contradicts, without explanation, previously given testimony.").
42 U.S.C. § 2000e-3(a). Congress thus recognized two predicates for retaliation claims: one for opposition to discriminatory practices, and another for participation in protected activity.
Equal Employment Opportunity Commission v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir.2000) (citations omitted).
Clark County School District v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam).
The remaining component of the second prima facie element requires a plaintiff to show that she was qualified for the positions she sought, id., and that is the precise point which defendant denies.
Doc. no. 38-1 (Plaintiff's Declaration), at 5.
Id. (emphasis in original). As noted in text, however, the copy of the foregoing document that was attached to David Rodriguez's Declaration as Exhibit 1 does not bear plaintiff's signature.
Id. at 457, 126 S.Ct. 1195.
Id.
