Penn v. Alabama Department of Corrections et al (MAG+)
Filing
54
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,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ALABAMA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
CIVIL ACTION NO.
2:10cv235-MHT
(WO)
OPINION
Plaintiff Brenda J. Penn filed this lawsuit against
defendants State of Alabama and Alabama Department of
Corrections
employees
(ADOC),
in
both
as
well
their
as
the
individual
following
and
ADOC
official
capacities: ADOC Commissioner Richard F. Allen, Warden
John Cummins, II, Captain Janet Hicks, Captain Victor
Napier, Lieutenant Mark Loman, and Sergeant Franetta
Riley.
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,
and
Fourteenth
Amendments
to
the
United
States
Constitution. Penn also asserts state-law claims against
all
defendants
infliction
interference
for
of
libel
and
emotional
with
a
slander,
distress,
contractual
intentional
and
tortious
relationship.
Jurisdiction over her federal claims is proper pursuant
to 28 U.S.C. §§ 1331 (federal question) and 1343 (civil
rights)
as
well
as
2000e-5(f)(3)
(Title
VII);
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.
I. BACKGROUND
Penn has been employed as a correctional officer at
Kilby Correctional Facility since 1976.
this
case
arise
out
of
three
2
Her claims in
separate
incidents,
described below.
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.
A.
Disagreement with Sergeant Riley
In October 2009, Penn voiced concerns to Sergeant
Riley
about
visitation
the
lack
restroom.
of
a
second
key
for
In
addition,
she
reported
inmate’s request for a coat.
Kilby’s
an
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
visitation
restroom
key,
though
Penn
does
not
know
whether Riley was subjected to any employee discipline
for the alleged incident.
up
or
subjected
to
any
Penn herself was never written
discipline
incident.
3
for
the
alleged
B.
Disagreement with Lieutenant Loman
In December 2009, Penn encountered a problem with a
segregation inmate.
The inmate called for Penn to come
to his cell.
Once she was there, he looked at her while
masturbating.
This prompted Penn to call for Lieutenant
Loman, who was a segregation-unit supervisor.
According
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
Napier.
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
about
the
incident.
Penn
was
never
written
up
or
subjected to any discipline for this incident.
C.
Disagreement Regarding Handicapped Parking
In December 2009, Penn was having problems with her
knee and was waiting to have surgery.
4
For this reason,
she decided to park in handicapped-parking spaces at
Kilby, using a handicapped sticker that belonged to her
daughter.
After doing this for three weeks, Captain
Napier asked her about it, and she admitted to using her
daughter’s
handicapped
“counseling
session,”
discipline.
sticker.
the
Penn
mildest
form
received
of
a
employee
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.
The court
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.”
Fed.
R.
Civ.
P.
56(a).
The
court
must
view
the
admissible evidence in the light most favorable to the
5
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).
III.
A.
DISCUSSION
Failure to Comply With Rule 56
With just a few exceptions, Penn does not support her
factual
allegations
evidentiary record.
with
specific
references
to
the
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
stored
information,
affidavits
or
declarations, stipulations (including
those made for purposes of the motion
only),
admissions,
interrogatory
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
6
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
the
court’s
scheduling
order,
the
court
will
grant
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.
7
B.
Age Discrimination Act Claims
Penn claims that the defendants violated her rights
under the Age Discrimination Act by singling her out for
ill treatment.
asserted
any
(The court notes that Penn has not
claims
under
the
Age
Discrimination
in
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
employer.”
42 U.S.C. § 6103(c)(1).
Therefore, because
Penn correlates her allegations of age discrimination
with her ADOC employment, she has no claim for relief
under the Age Discrimination Act.
Scranton,
134
F.Supp.2d
373,
See Tyrrell v. City of
381-84
(M.D.
Pa.
2001)
(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
8
damages.
id.
See
Discrimination
Act]
at
384
(holding
cannot
support
that
an
“the
[Age
action
for
damages”).
For these reasons, summary judgment will be granted
against Penn on her Age Discrimination Act claims as to
all defendants.
C.
Title VII Claims
The defendants argue that summary judgment should be
granted on Penn's Title VII claims because she has not
filed
a
charge
of
discrimination
with
the
Equal
Employment Opportunity Commission (“EEOC”), nor has she
received a “right-to-sue” letter from the EEOC regarding
these claims.
“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).
To exhaust
her remedies, the plaintiff must file a timely charge of
discrimination with the EEOC.
9
Id.
For a charge to be
timely in a non-deferral State such as Alabama, the EEOC
charge
must
be
discriminatory
filed
within
act.
42
180
days
U.S.C.
§
of
the
last
2000e-5(e)(1).
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
district
court
that
is
subject
to
equitable
modification).
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
examination
acknowledges
of
this
the
document
EEOC’s
shows
receipt
10
of
that
it
Penn’s
merely
internal
grievances
and
explains
the
procedure
for
filing
an
actual charge of discrimination.
For these reasons, summary judgment will be granted
against
Penn
on
her
Title
VII
claims
as
to
all
defendants.
D.
§ 1981 Claims
Penn presents many of her civil-rights claims as
causes of action under both § 1981 and § 1983.
The
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
action
against
state
actors;
therefore,
§
1983
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
11
(11th
Cir.
2000)).
Thus,
summary
judgment
must
be
granted against Penn on her § 1981 claims (to the extent
they are not based on § 1983) against the individual
defendants.
Further, Penn’s § 1981 claims against the State of
Alabama
and
immunity.
ADOC
are
barred
by
Eleventh
Amendment
Alyshah v. Georgia, 239 Fed. Appx. 473, 474
(11th Cir. 2007) (affirming dismissal of § 1981 claims on
Eleventh
Amendment
immunity
grounds,
finding
no
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
sued.”).
Accordingly, summary judgment will be granted against
Penn on her civil-rights claims to the extent that they
are brought under § 1981.
12
E.
Penn
brings
§ 1983 Claims
several
§
1983
claims.
First,
she
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
female
and
also
because
she
is
not
in
relationship with any of her supervisors.
a
sexual
Second, she
alleges that she has suffered from retaliation and a
hostile-work environment.
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.
Alyshah, 239
Fed. Appx. at 474 (affirming dismissal of § 1983 claims
on
Eleventh
Amendment
immunity
13
grounds,
finding
no
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
relief.
Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir.
1995) (explaining that the Eleventh Amendment does not
bar
suit
against
capacities
to
state
the
employees
extent
that
in
a
their
official
plaintiff
seeks
prospective-injunctive relief, as opposed to damages).
In this case, the individual defendants argue that Penn
is
merely
seeking
damages,
not
injunctive
relief.
However, it appears from Penn’s amended complaint that
she
is
also
seeking
prospective-injunctive
relief.
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.
14
However, as stated below, summary judgment is appropriate
on Penn’s § 1983 claims as to these defendants for other
reasons.
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.
She
asserts that these defendants, as supervisors, should
have
done
more
to
remedy
her
grievances
at
ADOC.
“‘Supervisory officials are not liable under section 1983
on
the
basis
of
respondeat
superior
or
vicarious
Belcher v. City of Foley, Ala., 30 F.3d
liability.’”
1390, 1396 (11th Cir. 1994) (quoting Hardin v. Hayes, 957
F.2d 845, 849 (11th Cir. 1992)).
liable
under
§
1983
“‘either
Supervisors may be held
when
the
supervisor
personally participates in the alleged constitutional
violation or when there is a causal connection between
actions
of
the
supervising
15
official
and
the
alleged
constitutional violation.’”
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
Cir.
1990)).
Because
Penn
has
not
proffered
the
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
official capacities.
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
female
and
also
because
she
is
not
relationship with any of her supervisors.
in
a
sexual
The defendants
argue that Penn cannot prove that she was subjected to
disparate treatment.
In
an
action
alleging
disparate
treatment,
a
plaintiff must prove an intentional discriminatory motive
by presenting either direct or circumstantial evidence.
16
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
issue
without
inference
or
presumption.”
Burns
v.
Gadsden State Community College, 908 F.2d 1512, 1518
(11th Cir. 1990) (citation omitted).
“Direct evidence
relates
of
to
reflecting
correlating
actions
a
or
statements
discriminatory
to
the
or
an
employer
retaliatory
attitude
discrimination
complained of by the employee.”
or
retaliation
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
discriminate,”
discrimination.
will
constitute
direct
evidence
of
Earley v. Champion Int’l. Corp., 907
F.2d 1077, 1081 (11th Cir. 1990) (internal quotations
omitted).
While Penn has made allegations of harassment and
described interpersonal disagreements with supervisors
17
and co-workers, she has not provided any direct evidence
of unlawful discrimination. In fact, in her deposition,
she
admitted
she
either
actions
defendants’
that
did
were
motivated
not
by
believe
the
discriminatory
motives or that she simply did not know.
Absent direct evidence, Penn may attempt to establish
intentional
discrimination
evidence.
When
a
through
plaintiff
offers
circumstantial
circumstantial
evidence of discriminatory intent, the court applies the
“familiar
burden-shifting
framework
established
in
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.”
facie
case,
the
Id. “By establishing a prima
plaintiff
creates
a
rebuttable
presumption that the employer unlawfully discriminated
against [her].”
Id. “The burden then shifts to the
employer to rebut this presumption by producing evidence
18
that
its
action
was
taken
non-discriminatory reason.”
meet
its
burden
of
for
Id.
production,
some
legitimate,
“Should the employer
the
presumption
of
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
unlawful discrimination.”
Id. at 1272-73.
“Although the
intermediate burdens of production shift back and forth,
the ultimate burden of persuading the trier of fact that
the
employer
intentionally
discriminated
against
the
employee remains at all times with the plaintiff.”
Id.
at 1273.
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
19
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
material
change
in
the
terms,
conditions,
or
privileges
of
employment.”
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
material
effect’
employment.”
on
the
terms
and
conditions
of
White v. Hall, 389 Fed. Appx. 956, 960
(11th Cir. 2010) (citing Davis, 245 F.3d. at 1241-44).
20
Here, Penn alleges that she has been criticized and
embarrassed.
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.
For
example,
she
has
not
been
terminated,
demoted,
suspended, or even officially reprimanded or warned; nor
does
the
evidence
support
a
constructive
discharge.
Thus, even if Penn’s allegations are accepted as true,
she has not made a prima facie showing of discrimination.
Further,
even
if
the
court
found
that
Penn
had
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
was treated.”
For
both
Burke-Fowler, 447 F.3d at 1323.
of
these
reasons,
therefore,
summary
judgment will be granted in favor of Riley and Loman on
21
Penn’s § 1983 sex-discrimination claims against them in
their individual and official capacities.
4.
Hostile-Work-Environment Claims
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
environment.
She
admitted
that
she
has
never
been
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
she
was
not
in
a
sexual
relationship
with
her
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:
“To
establish
a
hostile
work
environment claim ... an employee (or
former employee) must show harassing
behavior
‘sufficiently
severe
or
pervasive to alter the conditions of
[his or her] employment.’
Pa. State
22
Police v. Suders, 542 U.S. 129, 133,
124 S.Ct. 2342, 2347, 159 L.Ed.2d 204
(2004).
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
protected
characteristic
of
the
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
be abusive.’”
Id. at 1297 (quoting Miller, 277 F.3d at
1276).
23
Penn has presented no evidence to support a hostilework-environment claim.
granted
against
Penn
Thus, summary judgment will be
on
her
§
1983
hostile-work-
environment claims.
5.
Penn
also
retaliation.
Retaliation Claims
claims
that
she
has
suffered
from
“[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.
that
she
filed
complaints
and
Also, the mere fact
grievances
does
not
demonstrate that she engaged in “statutorily protected
activity.”
See Ross v. City of Perry, Ga., 396 Fed.
Appx. 668, 671 (11th Cir. 2010).
24
Therefore, summary judgment will also be granted
against Penn on her § 1983 retaliation claims.
6.
Other Constitutional Claims
Finally, Penn claims violations of her due-process
and
equal-protection
rights
under
the
Fifth
and
Fourteenth amendments, as well as violations of her First
Amendment rights.
Because the Fifth Amendment constrains only federal
action, it cannot serve as a basis of Penn’s claims.
See
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.
593 (1972)).1
With respect to Penn’s rights under the
Fourteenth amendment, the court has already explained
that
Penn
has
discrimination.
not
been
subjected
to
any
unlawful
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).
25
adverse-employment
action,
she
could
not
have
been
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,
“the
commonly
accepted
formulation
requires
that
a
plaintiff must establish first, that his speech or act
was
constitutionally
protected;
second,
that
the
defendant's retaliatory conduct adversely affected the
protected speech; and third, that there is a causal
connection
between
the
retaliatory
adverse effect on speech.”
actions
and
the
Bennett v. Hendrix, 423 F.3d
1247, 1250 (11th Cir. 2005) (citations omitted).
As to
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.
Penn
alleges that, after filing grievances against Riley and
26
Loman, the two defendants went to her supervisors in an
attempt to get her in trouble without any cause.
Penn
does not, however, provide any details about what Riley
and
Loman
said
to
Penn’s
supervisors,
nor
has
she
described any actions taken against her as a result of
their efforts.
Thus, because Penn has not demonstrated
any adverse consequences for filing her complaints and
grievances,
she
is
not
able
to
establish
her
First
Amendment retaliation claims.
Accordingly, summary judgment will also be granted
against Penn on her § 1983 claims under the First, Fifth,
and Fourteenth amendments.
7.
Qualified Immunity
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
27
rule,
“government
officials
performing
discretionary
functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which
a
reasonable
person
would
have
known.”
Harlow
v.
Fitzgerald, 457 U.S. 800, 818 (1982); see also Holmes v.
Kucynda, 321 F.3d 1069, 1077-78 (11th Cir. 2003).
For
the
opinion,
reasons
Penn
defendants
has
violated
already
not
given
shown
clearly
that
earlier
the
established
in
this
individual
statutory
or
constitutional rights of which a reasonable person would
have known.
Therefore, because of qualified immunity,
summary judgment will be entered against Penn on her §
1983 claims for damages against the defendants in their
individual capacities.
F.
State Claims
As stated, Penn also brings several state claims
against all defendants, including claims for libel and
28
slander, intentional infliction of emotional distress,
and
tortious
interference
with
a
contractual
relationship.2
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
claims.
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
infliction
of
emotional
distress,
and
tortious
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
defendants
violated
Alabama’s
criminal
harassment
statute, but she does not show that harassment
constitutes a civil tort in Alabama.
29
jurisdiction.”
taken
into
economy,
28 U.S.C. § 1367(c)(3).
account
include
convenience,
Carnegie-Mellon
(1988).3
Univ.
“the
values
fairness,
v.
Cohill,
Factors to be
484
of
and
U.S.
judicial
comity.”
343,
350
Courts are strongly encouraged to dismiss state
claims when the federal claims have been resolved prior
to trial.
should
See id. (concluding that “federal court[s]
decline
the
exercise
of
[supplemental]
jurisdiction by dismissing the case without prejudice”
when the federal law claims have been dismissed prior to
trial).
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
supplemental jurisdiction.
30
state court is tolled “for a period of 30 days after it
is dismissed unless State law provides for a longer
tolling period.”
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
States.”
Raygor
v.
Regents
of
the
Minnesota, 534 U.S. 533, 536 (2002).
defendants
are
unwilling
to
of
fairness,
the
waive
court
of
Further, the state
limitations defense for these claims.
interest
University
the
statute
of
Therefore, in the
will
maintain
its
supplemental jurisdiction and reach the merits of Penn’s
state claims.
1.
Libel and Slander
Penn has brought claims of libel and slander against
all defendants.
As to each defendant, to establish a
defamation claim, Penn must show “‘[1] that the defendant
was at least negligent [2] in publishing [3] a false and
31
defamatory
statement
to
another
[4]
concerning
the
plaintiff, [5] which is either actionable without having
to prove special harm (actionable per se) or actionable
upon allegations and proof of special harm (actionable
per quod).’”
Ex Parte Crawford Broadcasting, 904 So.2d
221, 225 (Ala. 2004) (quoting Delta Health Group, Inc. v.
Stafford, 887 So.2d
Defamation
slander
887, 891 (Ala. 2004)).
claims
actions.
consist
Libel
of
actions
libel
are
actions
“‘predicated
and
on
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.
1978)).
respect
“‘This
to
the
distinction,
question
as
however,
to
whether
language or words are actionable per se.’”
is
merely
the
in
imputed
Id. (quoting
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
32
not embody an accusation of crime, the law presumes
damage to the reputation, and pronounces it actionable
per se.’”
Id. (quoting Ceravolo, 364 So.2d at 1157).
In
contrast, “to constitute slander actionable per se, there
must be an imputation of an indictable offense involving
infamy
or
moral
turpitude[.]’”
Ceravolo, 364 So.2d at 1157).
Id.
at
17
(quoting
Slander is also actionable
per quod where the action is “founded on oral malicious
defamation
subjecting
the
plaintiff
to
disgrace,
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).
However,
where slander is actionable per quod, “‘the plaintiff
must allege and prove special damages as an element of
the cause of action.’”
at 1157).
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
they
are
limited
to
material
33
loss
capable
of
being
Id. at 18 (quoting Shook v. St.
measured in money.’”
Bede School, 74 F.Supp.2d 1172, 1180 (M.D. Ala. 1999)
(Thompson, J.)).
“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
and
conditions
which
made
it
constitutes a complete defense.”
privileged
in
law
Nelson v. Lapeyrouse
Grain Corp., 534 So.2d 1085, 1092 (internal quotations
omitted)).
Although Penn does not provide any explanation in her
filings
as
to
what
evidence
supports
her
defamation
claims, the court assumes, based on her deposition, that
these claims are based on her disagreements with Riley
and
Napier.
The
court
notes,
though,
that
Penn’s
allegations as to Riley are not entirely clear from the
34
deposition.
With respect to Riley, Penn appears to
allege
Riley
that
lied
about
her
when
she
stated,
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
workplace rules.
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
allegations
at
all
to
support
her
defamation
claims
against the other defendants. Further, Penn’s defamation
claims against Napier must fail since “[t]ruth is an
absolute defense to a defamation claim.”
School,
959
So.2d
at
100.
Penn
Saint James
admitted,
in
her
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
35
incident was true, these statements cannot support a
claim for defamation.
However,
even
Id.
assuming
that
Riley
and
Napier’s
statements about Penn were false, Penn has not shown that
the outcomes of these situations exposed her “to public
ridicule
or
contempt,”
nor
has
she
shown
that
they
attributed to her “an indictable offense involving infamy
or
moral
turpitude.”
Butler,
871
So.2d
at
16-17.
Therefore, she has not established claims for defamation
per se.
See id.
Further, any slander per quod claim
must also fail because Penn has not pled or proven
“special damages.”
See id. at 18.
Finally, the defendants also argue that Riley and
Napier’s
statements
about
Penn
were
protected
by
conditional or qualified privilege, given that these
statements concerned the performance and discipline of a
subordinate employee.
See id. at 26; Montgomery v. Big
B, Inc., 460 So.2d 1286, 1287 (Ala. 1984).
Because the
court finds that Penn has not established defamation
36
claims
against
Riley
nor
Napier
regardless
of
any
privileges these defendants may have, it need not reach
this issue.
Accordingly, summary judgment will be granted against
Penn
on
her
libel
and
slander
claims
as
to
all
defendants.
2.
Intentional Infliction of Emotional Distress
Penn brings claims of intentional infliction of
emotional distress against all defendants.
The Alabama
tort of outrage “is essentially equivalent to what many
states refer to as ‘intentional infliction of emotion
distress.’”
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
establish
that,
“(1)
the
defendant
...
intended
to
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
37
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)).
The Alabama
Supreme Court has emphasized “that this tort does not
recognize
threats,
recovery
annoyances,
trivialities.’”
So.2d
for
361,
‘mere
petty
insults,
indignities,
oppressions,
or
other
American Rd. Serv. Co. v. Inmon, 394
364-65
(Ala.
1980)
(citation
omitted).
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
as
atrocious
and
utterly
society.” Id. at 365.
intolerable
in
a
civilized
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
38
(3) egregious sexual harassment.”
Carraway Methodist
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
that
it
must
“be
regarded
as
atrocious
and
utterly
intolerable in a civilized society,” summary judgment
will
be
granted
against
Penn
infliction-of-emotional-distress
on
her
claims.
intentionalInmon,
394
So.2d at 365.
3.
Tortious Interference with a Contractual
Relationship
Penn also brings claims of tortious interference
with a contractual relationship against all defendants.
The elements of a claim for tortious interference with a
contract
are
“‘(1)
the
existence
39
of
a
contract
or
business relation, (2) the defendant's knowledge of the
contract
or
interference
business
by
the
relation,
defendant
with
(3)
the
intentional
contract
or
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
pleadings.
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,
40
summary judgment will be granted against Penn as to all
defendants.
4.
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
immunity.
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.
2000)
(“A
liability
State
in
his
agent
or
shall
her
be
personal
immune
from
capacity
civil
when
the
conduct made the basis of the claim against the agent is
based upon the agent's ... exercising his or her judgment
in
the
administration
of
a
department
or
agency
of
government, including, but not limited to ... hiring,
41
firing,
transferring,
assigning,
or
supervising
personnel[.]”).
However, because the court has already determined
that
all defendants are entitled to summary judgment on
Penn’s
state
claims,
it
need
not
consider
whether
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?