Penn v. Alabama Department of Corrections et al (MAG+)
OPINION. Signed by Honorable Judge Myron H. Thompson on 9/19/11. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
BRENDA J. PENN,
ALABAMA DEPARTMENT OF
CORRECTIONS, et al.,
CIVIL ACTION NO.
Plaintiff Brenda J. Penn filed this lawsuit against
defendants State of Alabama and Alabama Department of
capacities: ADOC Commissioner Richard F. Allen, Warden
John Cummins, II, Captain Janet Hicks, Captain Victor
Napier, Lieutenant Mark Loman, and Sergeant Franetta
Penn claims that these defendants violated her
rights under the Age Discrimination Act of 1975, 42
U.S.C. §§ 6101-6107; Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 1981a, 2000e to 2000e-17;
42 U.S.C. § 1981; 42 U.S.C. § 1983; and the First, Fifth,
Constitution. Penn also asserts state-law claims against
Jurisdiction over her federal claims is proper pursuant
to 28 U.S.C. §§ 1331 (federal question) and 1343 (civil
supplemental jurisdiction over the state claims is proper
under 28 U.S.C. § 1367.
Now before the court is the defendants’ motion for
summary judgment as to all claims.
For the reasons that
follow, the motion will be granted.
Penn has been employed as a correctional officer at
Kilby Correctional Facility since 1976.
Her claims in
Penn alleges that these incidents have
caused her to feel embarrassed and physically ill, and,
as a result, she has decided to retire from her position.
Disagreement with Sergeant Riley
In October 2009, Penn voiced concerns to Sergeant
inmate’s request for a coat.
According to Penn, this led
Riley to call her a “lazy ass officer.”
Penn “wrote up”
Riley the following day by filing a complaint with her
supervisors; she subsequently filed a formal grievance.
Warden Cummins later corrected the issue regarding the
whether Riley was subjected to any employee discipline
for the alleged incident.
Penn herself was never written
Disagreement with Lieutenant Loman
In December 2009, Penn encountered a problem with a
The inmate called for Penn to come
to his cell.
Once she was there, he looked at her while
This prompted Penn to call for Lieutenant
Loman, who was a segregation-unit supervisor.
to Penn, when Loman arrived, he got in Penn’s face and
shouted at her.
Because this embarrassed her, Penn
reported Loman to her supervisor, Lieutenant Cash, and
she subsequently made a written complaint to Captain
A day or two later, Penn discussed the incident
with Captains Napier and Hicks.
Napier stated that Loman
had been wrong and that he had already been counseled
subjected to any discipline for this incident.
Disagreement Regarding Handicapped Parking
In December 2009, Penn was having problems with her
knee and was waiting to have surgery.
For this reason,
she decided to park in handicapped-parking spaces at
Kilby, using a handicapped sticker that belonged to her
After doing this for three weeks, Captain
Napier asked her about it, and she admitted to using her
She subsequently went to her doctor and
obtained her own handicapped-parking sticker.
She had no
further problems with parking after that point.
II. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.
shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.
Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Failure to Comply With Rule 56
With just a few exceptions, Penn does not support her
Rule 56(c)(1) of the Federal Rules
of Civil Procedure states as follows:
“(1) Supporting Factual Positions. A
party asserting that a fact cannot be
or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of
materials in the record, including
depositions, documents, electronically
declarations, stipulations (including
those made for purposes of the motion
answers, or other materials; or
(B) showing that the materials cited do
not establish the absence or presence
of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1).
Further, the court’s scheduling order in this case
states as follows, in pertinent part:
“In all briefs filed by any party
relating to the motion, the discussion
of the evidence in the brief must be
accompanied by a specific reference, by
page and line, to where the evidence can
be found in a supporting deposition or
document. Failure to make such specific
reference will result in the evidence
not being considered by the court.”
Scheduling order at § 2 (Doc. No. 37).
Because Penn has not complied with Rule 56(c)(1) or
summary judgment against Penn on all of her claims.
However, as an independent ground for granting summary
judgment, the court will also separately review each of
Penn’s claims based on its understanding of the factual
record in this case.
Age Discrimination Act Claims
Penn claims that the defendants violated her rights
under the Age Discrimination Act by singling her out for
(The court notes that Penn has not
Employment Act of 1967, 29 U.S.C. §§ 621-634.)
The Age Discrimination Act applies to only federally
funded “programs” or
“activities,” 42 U.S.C. § 6102; the
act does not apply to any “employment practice of any
42 U.S.C. § 6103(c)(1).
Penn correlates her allegations of age discrimination
with her ADOC employment, she has no claim for relief
under the Age Discrimination Act.
See Tyrrell v. City of
(Caputo, J.) (holding that the Age Discrimination Act
does not allow a plaintiff to seek relief based on
allegations of employment discrimination). Further, even
if the act could be applied to employment discrimination,
the statute does not create a private right of action for
For these reasons, summary judgment will be granted
against Penn on her Age Discrimination Act claims as to
Title VII Claims
The defendants argue that summary judgment should be
granted on Penn's Title VII claims because she has not
Employment Opportunity Commission (“EEOC”), nor has she
received a “right-to-sue” letter from the EEOC regarding
“Before a potential plaintiff may sue for
discrimination under Title VII, she must first exhaust
her administrative remedies.”
Wilkerson v. Grinnell
Corp., 270 F.3d 1314, 1317 (11th Cir. 2001).
her remedies, the plaintiff must file a timely charge of
discrimination with the EEOC.
For a charge to be
timely in a non-deferral State such as Alabama, the EEOC
Generally, in order to exhaust administrative remedies,
a plaintiff must receive a “right-to-sue” letter before
a judicial complaint may be filed.
See Forehand v.
Florida State Hosp. at Chattahoochee, 89 F.3d 1562, 1567
(11th Cir. 1996) (explaining that receipt of a right-tosue letter is a condition precedent to bringing suit in
In this case, although Penn sent copies of internal
grievances to the EEOC, which she had filed with the
ADOC, she admitted that she has not filed a formal charge
of discrimination with the EEOC.
Further, although Penn
claims to have received a “right-to-sue” letter, a closer
actual charge of discrimination.
For these reasons, summary judgment will be granted
§ 1981 Claims
Penn presents many of her civil-rights claims as
causes of action under both § 1981 and § 1983.
defendants argue that, to the extent the actions against
the individual defendants are made under § 1981, the
defendants are entitled to summary judgment because the
individual defendants are state actors.
“[Section] 1981 does not provide an implicit cause of
constitutes the exclusive federal remedy for violation by
state actors of the rights guaranteed under § 1981.”
Bryant v. Jones, 575 F.3d 1281, 1288 n.1 (11th Cir. 2009)
(citing Butts v. County of Volusia, 222 F.3d 891, 894-95
granted against Penn on her § 1981 claims (to the extent
they are not based on § 1983) against the individual
Further, Penn’s § 1981 claims against the State of
Alyshah v. Georgia, 239 Fed. Appx. 473, 474
(11th Cir. 2007) (affirming dismissal of § 1981 claims on
abrogation of state immunity); Abusaid v. Hillsborough
County Bd. Of County Com’rs, 405 F.3d 1298, 1303 (11th
Cir. 2005) (internal quotations omitted) (“[T]he law is
well-settled that Eleventh Amendment immunity bars suits
brought in federal court when an ‘arm of the State’ is
Accordingly, summary judgment will be granted against
Penn on her civil-rights claims to the extent that they
are brought under § 1981.
§ 1983 Claims
alleges that she has suffered a violation of her civil
rights by being subjected to sex discrimination, in that
she was singled out for ill treatment because she is
relationship with any of her supervisors.
alleges that she has suffered from retaliation and a
Third, she alleges violations
of her due-process and equal-protection rights, charging
that she has been mistreated because she is a female over
the age of 40.
Fourth and finally, she alleges that her
First Amendment rights have been violated.
1. Claims Against State of Alabama, ADOC, and
Individual Defendants in Their Official Capacities
Penn’s claims against the State of Alabama and ADOC
are barred by Eleventh Amendment immunity.
Fed. Appx. at 474 (affirming dismissal of § 1983 claims
abrogation of state immunity); Abusaid, 405 F.3d at 1303.
Therefore, summary judgment will be granted against Penn
on her § 1983 claims as to these defendants.
Penn’s claims against the individual defendants in
their official capacities are also barred by Eleventh
Amendment to the extent that Penn is seeking damages, but
not to the extent that Penn seeks prospective-injunctive
Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir.
1995) (explaining that the Eleventh Amendment does not
prospective-injunctive relief, as opposed to damages).
In this case, the individual defendants argue that Penn
However, it appears from Penn’s amended complaint that
Therefore, summary judgment is inappropriate on Penn’s §
1983 claims as to the individual defendants in their
official capacities on the basis of sovereign immunity.
However, as stated below, summary judgment is appropriate
on Penn’s § 1983 claims as to these defendants for other
2. Claims Against Commissioner Allen,
Warden Cummins, Captain Napier, and Captain Hicks
Penn’s § 1983 claims against Commissioner Allen,
Warden Cummins, Captain Napier, and Captain Hicks are
predicated on actions by them as ADOC supervisors.
asserts that these defendants, as supervisors, should
“‘Supervisory officials are not liable under section 1983
Belcher v. City of Foley, Ala., 30 F.3d
1390, 1396 (11th Cir. 1994) (quoting Hardin v. Hayes, 957
F.2d 845, 849 (11th Cir. 1992)).
Supervisors may be held
personally participates in the alleged constitutional
violation or when there is a causal connection between
Braddy v. Fla. Dep’t of
Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir.
1998) (quoting Brown v. Crawford, 906 F.2d 667, 671 (11th
necessary evidence to establish a supervisory claim,
summary judgment will be granted against Penn on her §
1983 claim as to these defendants in their individual and
3. Sex Discrimination Claims
Against Sergeant Riley and Lieutenant Loman
As stated, Penn claims sex discrimination, charging
that she was singled out for ill treatment because she is
relationship with any of her supervisors.
argue that Penn cannot prove that she was subjected to
plaintiff must prove an intentional discriminatory motive
by presenting either direct or circumstantial evidence.
See Lee v. Russell County Bd. Of Educ., 684 F.2d 769,
773-74 (11th Cir. 1982).
“Direct evidence” is evidence
which, “if believed, proves the existence of a fact in
Gadsden State Community College, 908 F.2d 1512, 1518
(11th Cir. 1990) (citation omitted).
complained of by the employee.”
Carter v. Three Springs
Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998)
(internal quotations omitted).
“Only the most blatant
remarks, whose intent could be nothing other than to
Earley v. Champion Int’l. Corp., 907
F.2d 1077, 1081 (11th Cir. 1990) (internal quotations
While Penn has made allegations of harassment and
described interpersonal disagreements with supervisors
and co-workers, she has not provided any direct evidence
of unlawful discrimination. In fact, in her deposition,
motives or that she simply did not know.
Absent direct evidence, Penn may attempt to establish
evidence of discriminatory intent, the court applies the
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and subsequent cases.”
E.E.O.C. v. Joe's Stone Crabs,
Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). “Under this
framework, the plaintiff must establish a prima facie
case of discrimination.”
Id. “By establishing a prima
presumption that the employer unlawfully discriminated
Id. “The burden then shifts to the
employer to rebut this presumption by producing evidence
“Should the employer
discrimination is rebutted, and the inquiry ‘proceeds to
a new level of specificity,’ in which the plaintiff must
show that the proffered reason really is a pretext for
Id. at 1272-73.
intermediate burdens of production shift back and forth,
the ultimate burden of persuading the trier of fact that
employee remains at all times with the plaintiff.”
Penn may establish a prima-face case of disparate
treatment on the basis of sex by showing that: “(1) she
is a member of a protected class; (2) she was subjected
to an adverse employment action; (3) her employer treated
similarly situated employees outside of her protected
class more favorably than she was treated; and (4) she
was qualified to do the job.”
Burke-Fowler v. Orange
County, 447 F.3d 1319, 1323 (11th Cir. 2006).
As to what constitutes an adverse-employment action,
the Eleventh Circuit has explained:
“Whatever the benchmark, it is clear
that ... the employer's action must
impact the ‘terms, conditions, or
privileges’ of the plaintiff's job in
a real and demonstrable way. Although
[this] does not require proof of direct
economic consequences in all cases, the
asserted impact cannot be speculative
and must at least have a tangible
adverse effect on the plaintiff's
employment. We therefore hold that, to
prove adverse employment action ..., an
employee must show a serious and
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239
(11th Cir. 2001).
Moreover, “[c]riticisms, negative
evaluations, and temporary and non-substantial changes in
work assignments are not actions that have a ‘serious and
White v. Hall, 389 Fed. Appx. 956, 960
(11th Cir. 2010) (citing Davis, 245 F.3d. at 1241-44).
Here, Penn alleges that she has been criticized and
She further alleges that, as a result of
this criticism and embarrassment, she was constructively
dismissed, that is, that she felt compelled to retire.
Notwithstanding these allegations, though, Penn has not
shown that she suffered an adverse-employment action.
suspended, or even officially reprimanded or warned; nor
Thus, even if Penn’s allegations are accepted as true,
she has not made a prima facie showing of discrimination.
suffered an adverse-employment action, she has not shown
that “her employer treated similarly situated employees
outside of her protected class more favorably than she
Burke-Fowler, 447 F.3d at 1323.
judgment will be granted in favor of Riley and Loman on
Penn’s § 1983 sex-discrimination claims against them in
their individual and official capacities.
Penn claims that the incidents involving her and
Riley and Loman, as well as the disagreement about her
use of handicapped parking, all created a hostile-work
subjected to unwanted sexual advances by any of the
defendants in this case.
In addition, although her
complaint alleges discrimination based on the fact that
supervisors, she admitted that she has no knowledge about
any of her supervisors’ sexual relationships.
With respect to hostile-work-environment claims, the
Eleventh Circuit has stated:
environment claim ... an employee (or
former employee) must show harassing
pervasive to alter the conditions of
[his or her] employment.’
Police v. Suders, 542 U.S. 129, 133,
124 S.Ct. 2342, 2347, 159 L.Ed.2d 204
This requires that the
employee prove the following: ‘(1) that
he [or she] belongs to a protected
group; (2) that he [or she] has been
subject to unwelcome harassment; (3)
that the harassment [was] based on a
employee, such as national origin; (4)
that the harassment was sufficiently
severe or pervasive to alter the terms
and conditions of employment and create
a discriminatorily abusive working
environment; and (5) that the employer
is responsible for such environment
under either a theory of vicarious or
of direct liability.’”
Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009)
(quoting Miller v. Kenworth of Dothan, Inc., 277 F.3d
1269, 1275 (11th Cir. 2002)).
As to the fourth element
of this test, “this element contains both subjective and
objective components; that is, ‘to be actionable, [the
harassment] must result in both an environment that a
reasonable person would find hostile or abusive and an
environment that the victim subjectively perceive[s] to
Id. at 1297 (quoting Miller, 277 F.3d at
Penn has presented no evidence to support a hostilework-environment claim.
Thus, summary judgment will be
“[A] plaintiff alleging retaliation must
first establish a prima facie case by showing that: (1)
[s]he engaged in a statutorily protected activity; (2)
[s]he suffered an adverse employment action; and (3)
[s]he established a causal link between the protected
activity and the adverse action.”
Id. at 1307-08.
Penn has not presented any evidence to show that she
has satisfied any of these elements.
Also, the mere fact
demonstrate that she engaged in “statutorily protected
See Ross v. City of Perry, Ga., 396 Fed.
Appx. 668, 671 (11th Cir. 2010).
Therefore, summary judgment will also be granted
against Penn on her § 1983 retaliation claims.
Other Constitutional Claims
Finally, Penn claims violations of her due-process
Fourteenth amendments, as well as violations of her First
Because the Fifth Amendment constrains only federal
action, it cannot serve as a basis of Penn’s claims.
Knoetze v. U.S. Dep’t of State, 634 F.2d 207, 211 (5th
Cir. Jan. 12, 1981) (citing Perry v. Sinderman, 408 U.S.
With respect to Penn’s rights under the
Fourteenth amendment, the court has already explained
Because Penn also has not suffered an
1. The Eleventh Circuit has adopted as precedent all
decisions of the former Fifth Circuit rendered prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981) (en banc).
deprived of a liberty or property interest that would
support a § 1983 claim based on an alleged violation of
her due-process rights under the Fourteenth Amendment.
See Wu v. Thomas, 847 F.2d 1480, 1485 (11th Cir. 1988).
To establish a First Amendment retaliation claim,
plaintiff must establish first, that his speech or act
defendant's retaliatory conduct adversely affected the
protected speech; and third, that there is a causal
adverse effect on speech.”
Bennett v. Hendrix, 423 F.3d
1247, 1250 (11th Cir. 2005) (citations omitted).
the second prong, “[a] plaintiff suffers adverse action
if the defendant's allegedly retaliatory conduct would
likely deter a person of ordinary firmness from the
exercise of First Amendment rights.”
Id. at 1254.
alleges that, after filing grievances against Riley and
Loman, the two defendants went to her supervisors in an
attempt to get her in trouble without any cause.
does not, however, provide any details about what Riley
described any actions taken against her as a result of
Thus, because Penn has not demonstrated
any adverse consequences for filing her complaints and
Amendment retaliation claims.
Accordingly, summary judgment will also be granted
against Penn on her § 1983 claims under the First, Fifth,
and Fourteenth amendments.
The individual defendants also argue that they are
entitled to qualified immunity with respect to Penn’s
§ 1983 claims.
To the extent the defendants have been
sued in their individual capacities, they are permitted
to raise this defense.
Under the qualified-immunity
functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which
Fitzgerald, 457 U.S. 800, 818 (1982); see also Holmes v.
Kucynda, 321 F.3d 1069, 1077-78 (11th Cir. 2003).
constitutional rights of which a reasonable person would
Therefore, because of qualified immunity,
summary judgment will be entered against Penn on her §
1983 claims for damages against the defendants in their
As stated, Penn also brings several state claims
against all defendants, including claims for libel and
slander, intentional infliction of emotional distress,
As a preliminary issue, the court must determine
whether it should reach the merits of these claims, given
that summary judgment will granted against Penn on all
her federal claims.
A district court has discretion to
decline supplemental jurisdiction over a claim when it
“has dismissed all claims over which it has original
2. In count IV of her complaint, Penn purports to
assert 15 separate state claims. It appears, however,
that Penn has confusingly mixed both federal and state
claims in this count, with the majority being federal
Penn has not clarified this confusion in her
pleadings and the court addresses Penn’s federal claims
elsewhere in this opinion.
As stated, the court has
identified that the only unique state claims presented in
this count are those for libel and slander, intentional
interference with a contractual relationship. Finally,
although Penn also purports to bring a state claim of
harassment against all defendants, the court is not aware
of any authorities establishing harassment as a civil
tort in Alabama, nor has Penn provided any such
authorities. To be clear, Penn does argue that certain
statute, but she does not show that harassment
constitutes a civil tort in Alabama.
28 U.S.C. § 1367(c)(3).
Factors to be
Courts are strongly encouraged to dismiss state
claims when the federal claims have been resolved prior
See id. (concluding that “federal court[s]
jurisdiction by dismissing the case without prejudice”
when the federal law claims have been dismissed prior to
Ordinarily, dismissing state claims without prejudice
will not prejudice a plaintiff, due to the fact that the
period of limitations for filing a state law claim in
3. Carnegie-Mellon was decided before the passage in
1990 of 28 U.S.C. § 1367, which expressly authorized
district courts to decline exercise of supplemental
jurisdiction over state-law claims if all claims within
the court’s original jurisdiction had been dismissed.
Nevertheless, Carnegie-Mellon remains useful in analyzing
when district courts should decline to exercise
state court is tolled “for a period of 30 days after it
is dismissed unless State law provides for a longer
28 U.S.C. § 1367(d).
In this case,
however, Penn could lose her claims against the state
defendants because “the tolling prevision does not apply
to claims filed in federal court against nonconsenting
Minnesota, 534 U.S. 533, 536 (2002).
Further, the state
limitations defense for these claims.
Therefore, in the
supplemental jurisdiction and reach the merits of Penn’s
Libel and Slander
Penn has brought claims of libel and slander against
As to each defendant, to establish a
defamation claim, Penn must show “‘ that the defendant
was at least negligent  in publishing  a false and
plaintiff,  which is either actionable without having
to prove special harm (actionable per se) or actionable
upon allegations and proof of special harm (actionable
Ex Parte Crawford Broadcasting, 904 So.2d
221, 225 (Ala. 2004) (quoting Delta Health Group, Inc. v.
Stafford, 887 So.2d
887, 891 (Ala. 2004)).
written or printed aspersions of character,’” whereas
slander actions are predicated on “‘oral defamation.’”
Butler v. Town of Argo, 871 So.2d 1, 16 (Ala. 2003)
(quoting Ceravolo v. Brown, 364 So.2d 1155, 1157 (Ala.
language or words are actionable per se.’”
Ceravolo, 364 So.2d at 1157).
“‘In cases of libel, if the language used exposes the
plaintiff to public ridicule or contempt, though it does
not embody an accusation of crime, the law presumes
damage to the reputation, and pronounces it actionable
Id. (quoting Ceravolo, 364 So.2d at 1157).
contrast, “to constitute slander actionable per se, there
must be an imputation of an indictable offense involving
Ceravolo, 364 So.2d at 1157).
Slander is also actionable
per quod where the action is “founded on oral malicious
ridicule, odium, or contempt, though it falls short of
imputing the commission of such crime or misdemeanor.”
Id. (quoting Ceravolo, 364 So.2d at 1157).
where slander is actionable per quod, “‘the plaintiff
must allege and prove special damages as an element of
the cause of action.’”
Id. (quoting Ceravolo, 364 So.2d
“‘Special damages are the material harms that
are the intended result or natural consequence of the
slanderous statement ... and the general rule is that
Id. at 18 (quoting Shook v. St.
measured in money.’”
Bede School, 74 F.Supp.2d 1172, 1180 (M.D. Ala. 1999)
“Truth is an absolute defense to a defamation claim.”
S.B. v. Saint James School, 959 So.2d 72, 100 (Ala. 2006)
(citing Foley v. State Farm Fire & Cas. Ins. Co., 491
So.2d 934 (Ala. 1986)).
In addition, “[i]n libel and
slander actions, a showing that the alleged defamation
was made on a privileged occasion or under circumstances
constitutes a complete defense.”
Nelson v. Lapeyrouse
Grain Corp., 534 So.2d 1085, 1092 (internal quotations
Although Penn does not provide any explanation in her
claims, the court assumes, based on her deposition, that
these claims are based on her disagreements with Riley
allegations as to Riley are not entirely clear from the
With respect to Riley, Penn appears to
verbally and in writing, that (1) Penn herself lied about
Riley’s having cursed at her; and (2) that Penn was
reading a newspaper during her shift, in violation of
With respect to Napier, Penn alleges
that Napier somehow defamed her by writing her up for
improperly using handicapped-parking spaces at Kilby.
As a preliminary matter, Penn has made allegations
against only Riley and Napier, and thus there are no
against the other defendants. Further, Penn’s defamation
claims against Napier must fail since “[t]ruth is an
absolute defense to a defamation claim.”
deposition, that she had improperly used her daughter’s
handicapped-parking sticker. Thus, because the substance
of what Napier said or wrote about Penn regarding that
incident was true, these statements cannot support a
claim for defamation.
statements about Penn were false, Penn has not shown that
the outcomes of these situations exposed her “to public
attributed to her “an indictable offense involving infamy
Therefore, she has not established claims for defamation
Further, any slander per quod claim
must also fail because Penn has not pled or proven
See id. at 18.
Finally, the defendants also argue that Riley and
conditional or qualified privilege, given that these
statements concerned the performance and discipline of a
See id. at 26; Montgomery v. Big
B, Inc., 460 So.2d 1286, 1287 (Ala. 1984).
court finds that Penn has not established defamation
privileges these defendants may have, it need not reach
Accordingly, summary judgment will be granted against
Intentional Infliction of Emotional Distress
Penn brings claims of intentional infliction of
emotional distress against all defendants.
tort of outrage “is essentially equivalent to what many
states refer to as ‘intentional infliction of emotion
K.M. v. Ala. Dep't of Youth Servs., 360
F.Supp.2d 1253, 1259 n.4 (M.D. Ala. 2005) (Thompson, J.).
In order to prove a claim of outrage, a plaintiff must
inflict emotional distress, or should have known that his
or her acts would result in emotional distress; (2) the
act [was] extreme and outrageous; (3) the act ... caused
plaintiff['s] distress; and (4) plaintiff['s] emotional
distress [was] so severe that no reasonable person could
be expected to endure it.”
Id. at 1259 (citing Harrelson
v. R.J., 882 So.2d 317, 322 (Ala. 2003)).
Supreme Court has emphasized “that this tort does not
American Rd. Serv. Co. v. Inmon, 394
Rather, recovery is appropriate for only “conduct so
outrageous in character and so extreme in degree as to go
beyond all possible bounds of decency, and to be regarded
society.” Id. at 365.
The court is aware of “only three
limited circumstances” where the Alabama Supreme Court
has recognized this tort: “(1) wrongful conduct within
the context of family burials; (2) an insurance agent's
coercing an insured into settling an insurance claim; and
(3) egregious sexual harassment.”
Health Systems v. Wise, 986 So.2d 387, 401 (Ala. 2007).
In this case, Penn articulates no specific basis for
these claims in her pleadings.
Her deposition shows,
however, that these claims are based on the previously
discussed interactions with Riley, Loman, and Napier.
Because the alleged conduct of these defendants cannot be
viewed as “beyond all possible bounds of decency,” so
intolerable in a civilized society,” summary judgment
So.2d at 365.
Tortious Interference with a Contractual
Penn also brings claims of tortious interference
with a contractual relationship against all defendants.
The elements of a claim for tortious interference with a
business relation, (2) the defendant's knowledge of the
business, and (4) damage to the plaintiff as a result of
the defendant's interference.’” Serra Chevrolet, Inc. v.
Edwards Chevrolet, Inc., 850 So.2d 259, 265 (Ala. 2002)
(quoting Bama Budweiser of Montgomery, Inc. v. AnheuserBusch, Inc., 611 So.2d 238, 246-47 (Ala. 1992)).
In this case, as with her other state claims, Penn
articulates no specific basis for these claims in her
In her deposition, Penn testified that her
interactions with Riley, Loman, and Napier could have
impacted her participation in her deferred retirement
option plan (DROP).
However, she admitted that she was
not compelled to quit her job
and that she would begin
reaping the full benefits of her retirement and DROP
starting in January 2011.
Thus, because Penn has not
proven the elements of these claims and because she
admits that her ability to use DROP has not been impeded,
summary judgment will be granted against Penn as to all
Sovereign Immunity and State-Agent Immunity
The State of Alabama, ADOC, and official-capacity
defendants also argue that they are entitled to sovereign
immunity under state law, and the individual-capacity
defendants argue that they are entitled to state-agent
See Ala. Dep’t of Corrections v. Montgomery
Co. Comm’n, 11 So.3d 189, 191-92 (Ala. 2008) (explaining
that sovereign immunity is a jurisdictional bar that
prohibits actions against the State of Alabama and its
agencies); Ex parte Cranman, 792 So.2d 392, 405 (Ala.
conduct made the basis of the claim against the agent is
based upon the agent's ... exercising his or her judgment
government, including, but not limited to ... hiring,
However, because the court has already determined
all defendants are entitled to summary judgment on
sovereign or state-agent immunity applies in this case.
* * *
Thus, for the foregoing reasons, the court concludes
that summary judgment should be granted in favor of the
defendants and against Penn on each of her claims.
An appropriate judgment will be entered.
DONE, this the 19th day of September, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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