Green v. Mobis Alabama, LLC et al

Filing 132

MEMORANDUM OPINION AND ORDER as follows: 1) Green's 78 Motion to Strike the Declaration of Kevin Green is GRANTED; 2) Green's 92 Motion to Strike Dft's Supplemental Evidentiary Submission is DENIED; 3) MOBIS's 58 Motion for Summary Judgment is GRANTED as to all of Green's claims, and Green's Amended Complaint is DISMISSED WITH PREJUDICE; 4) The state law claims against Powers (Counts 57 of the Amended Complaint) are DISMISSED WITHOUT PREJUDICE; 5) The trial of this case is CANCELLED. Signed by Honorable Judge Mark E. Fuller on 2/5/2014. (furn: Calendar, wr)(term: Jury Selection and Jury Trial for 02/10/2014)(wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
NORIA C. GREEN,
Plaintiff,
v.
MOBIS ALABAMA, LLC,
JEREMY POWERS,
Defendants.

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CASE NO. 2:12-cv-277-MEF
(WO – Publish)

MEMORANDUM OPINION AND ORDER
Plaintiff Noria Green (“Green”) brings suit against MOBIS Alabama, LLC
(“MOBIS”), asserting claims based on Title VII for sexual harassment, gender
discrimination, and retaliation, as well as violations of the Family and Medical Leave Act
(“FMLA”) (Doc. #42). Green also asserts various state law tort claims against MOBIS and
Defendant Jeremy Powers (“Powers”). Green’s claims arise out of alleged sexual harassment
by Powers and her termination based on what MOBIS claims were falsified doctor’s notes
Green submitted in connection with requests she made for FMLA leave. Now before the
Court is MOBIS’s Motion for Summary Judgment (Doc. #58). Powers has not moved for
summary judgment. For the reasons discussed below, MOBIS’s motion for summary
judgment is due to be GRANTED as to all counts.
I. JURISDICTION AND VENUE
This Court has subject-matter jurisdiction over the parties’ claims under 28 U.S.C. §

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1331; 1343(a)(3); and 1367. The parties do not dispute that venue is proper under 28 U.S.C.
§ 1391(b), and the Court finds adequate allegations supporting both.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine [dispute] as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment “always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine [dispute] of material fact.” Id. at 323. The movant can meet this
burden by presenting evidence showing there is no dispute of material fact, or by showing
the non-moving party has failed to present evidence in support of some element of its case
on which it bears the ultimate burden of proof. Id. at 322–23.
Once the moving party has met its burden, the non-moving party must “go beyond the
pleadings and by their own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate ‘specific facts showing that there is a genuine issue for trial.”
Id. at 324 (internal quotations omitted). To avoid summary judgment, the non-moving party
“must do more than simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A
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plaintiff must present evidence demonstrating that it can establish the basic elements of its
claim, Celotex, 477 U.S. at 322, because “conclusory allegations without specific supporting
facts have no probative value” at the summary judgment stage. Evers v. Gen. Motors Corp.,
770 F.2d 984, 986 (11th Cir. 1985).
A court ruling on a motion for summary judgment must believe the evidence of the
non-movant and must draw all justifiable inferences from the evidence in the non-moving
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). After the nonmoving party has responded to the motion for summary judgment, the court must grant
summary judgment if there is no genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).
III. FACTS
The Court has carefully considered the submissions of the parties in support of and
in opposition to the motion. The submissions of the parties, taken in the light most favorable
to Green, the non-moving party, establish the following material facts:
MOBIS operates a manufacturing plant in Montgomery County, Alabama that, among
other things, supplies plastic bumpers to Hyundai Motors Manufacturing Alabama, LLC.
Green, an African-American female, began working for MOBIS on February 21, 2005. At
the times relevant to this lawsuit, Green worked in the Paint Department at MOBIS. Her
duties were to ensure that the bumpers manufactured for Hyundai vehicles matched the color
of the vehicles to which they would be attached.
In December 2010, Powers, an African-American male, transferred to the first shift
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in the Paint Department (3:00 a.m. to 3:00 p.m.), which was also Green’s shift. At the time
of his transfer, Powers was a Team Leader, which is an hourly-paid, non-supervisory
position. Green claims that in January 2011 Powers began sexually harassing her. Powers
sent Green inappropriate text messages (e.g., “Wanna come hold it . . . ha ha,” “U look cute
. . .,” “kiss kiss”), including a picture of his erect penis, which he referred to as “Big Willie.”
These text messages were sometimes sent outside of work hours. Powers would stare at
Green’s breasts and said to her on at least one occasion that her nipples were hard. Green
also claims that Powers touched her inappropriately. Powers would press himself against
Green from behind and say that his penis was erect, grab Green’s buttocks, and on two
occasions grabbed Green’s breasts. Green states that Powers did these things “very often”
and “many times” over the course of several months beginning in January 2010.1 (Doc. #601, at 42–43.)
MOBIS has a sexual harassment policy, and it is undisputed that Green received a
copy of this policy on more than one occasion and also attended annual sexual harassment
sessions. MOBIS’s policy defines sexual harassment, prohibits, and includes the following
statement on reporting sexual harassment:
Reporting and Investigation
Anyone who feels that he or she has been subjected to conduct

1

The Court notes that Powers has denied these actions and claims that he and Green
maintained a consensual relationship. However, Powers has not moved for summary judgment, and
the Court credits Green’s account since it must take the facts in the light most favorable to Green
as the non-moving party.
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that violates this policy has a duty to immediately report the
matter. MOBIS provides multiple avenues for reporting
harassment to the aggrieved Team Member’s Supervisor,
Department Manager, Team Relations Department, or HR. If
you do not receive prompt acknowledgment of your complaint
from Team Relations or HR, notify HR immediately. Early
reporting and intervention have shown to be one of the most
effective methods of resolving actual or perceived incidents of
harassment. MOBIS will make every effort to stop alleged
harassment before it becomes severe or pervasive, but can only
do so with your cooperation.
Every report of perceived harassment will be fully, promptly,
and impartially investigated and corrective action will be taken
where appropriate.
Confidentiality will be maintained
throughout the investigatory process to the extent consistent
with adequate investigation and appropriate corrective action.
Violation of this policy will result in disciplinary action, up to
and including discharge.
(Doc. #60-4, at 56.) Power Point slides used in MOBIS’s sexual harassment training also
stress an employee’s duty to report sexual harassment as soon as possible, stating:
•

If comfortable, tell the perpetrator to stop, say NO!

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If inappropriate behavior continues, notify the chain of
supervision.

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If it still persists, contact human resources officials for
appropriate administrative procedures.

(Doc. #60-7, at 15.)
As stated above, the policy directs employees to report sexual harassment to their
“Supervisor, Department Manager, Team Relations Department, or HR.” Green’s Supervisor
throughout her employment with MOBIS was Don Crosley (“Crosley”), and he was
generally present every day throughout Green’s shift. Human Resources was located in a
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separate building. Team Members had to schedule an appointment with Human Resources
and could not access the building without the security badge of a Team Leader or someone
in a more senior position. Team Relations existed to bridge the gap between Human
Resources and Team Members by being present throughout the plant on every shift. Team
Relations were responsible for taking any concerns or documents from Team Members
during their shift to the Human Resources Department.
In February 2011, Green first complained of Powers’s sexual harassment to Coy
Kendrick (“Kendrick”). Kendrick was a Team Leader on a different shift, but Green had
worked with him in the past and felt comfortable talking to him. Team Leaders like
Kendrick, however, are not among the members of management specified in MOBIS’s sexual
harassment policy to whom employees are directed to report sexual harassment.
On April 6, 2011, approximately three months after Powers’s sexual harassment
began, and during which time Green says she was sexually harassed “on almost a daily
basis,” (Doc. #77-1, ¶ 7), Green placed an unsigned, anonymous complaint in an UPLINK
box. UPLINK boxes were a means of communicating with management instituted by
MOBIS.

MOBIS placed several locked UPLINK boxes throughout their facilities.

Employees were encouraged to place written comments in the boxes, which were then
removed by members of Team Relations and taken to Human Resources. The UPLINK
comments would go to Curt Bennett (“Bennett”), who was assistant manager of Team
Relations and later manager of Human Resources. Bennett would typically type the
handwritten comments from the UPLINK boxes, add a typed response from management,
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and post the comments with management’s response on a bulletin board by the UPLINK box.
Comments with names were not posted publicly, and Bennett would post comments with
responses only if appropriate. (Doc. #61-1, at 9–12.) Printed guidelines on the use of the
UPLINK boxes state that “[n]o names will ever be printed or posted,” and that “[n]o
UPLINKS that ask about confidential items will be answered or posted.” (Doc. #60-10, at
24.)
The anonymous comment Green placed in the UPLINK box dated April 6, 2011,
stated:
We as the woman in the paint department is tired of the sexual
harassment Jeremy Powers is doing. We are frighten & scared
of Jeremy but don’t know who to tell or go to. He is friend with
Don and we are scared of losing our jobs. This has to be stop.
We all 5 have proof. He texts things that are unapomptly. We
talk about it with each other but no one would believe us. What
should we do. This is coming from MOBIS employees, temps,
and contract workers. Someone have to step up. This has to be
investigated.
(Doc. #60-10, at 35, 41.) When the UPLINK system was first implemented, Team Relations
checked the boxes nearly every day due to the high level of employee interest. As employee
use of the UPLINK boxes tapered off, MOBIS ceased checking the boxes as frequently.
(Doc. #61-1, at 35.) As a result, MOBIS did not immediately remove Green’s complaint
from April 6, 2011. Green states that she submitted a second, signed complaint about
Powers’s sexual harassment, although she could not remember when or even whether she

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submitted it before or after the April 6 complaint.2 (Doc. #60-1, at 36–37, 68.) In any event,
it was not until late May or early June 2011 that MOBIS received Green’s April 6, 2011
anonymous complaint.3
When MOBIS received the anonymous complaint dated April 6, 2011, in late May
or early June, it immediately posted the following revised comment and response:
Team Member UPLINK:
There is a concern regarding what steps to take when dealing
with harassment in my department because I am scared of losing
my job and something needs to be done and investigated.
Management Response
If there is ever a time that you feel like you are being harassed
on the job please contact your immediate Supervisor and the
Team Relations dept. If you are not comfortable talking to your
Supervisor about the issue then contact Team Relations directly.
(Doc. #61-9, at 17.) When no employee came forward in response to this post from
management, Bennett and Chris Morgan (“Morgan”), Team Relations Manager, began an
investigation on June 14, 2011. Bennett and Morgan interviewed several hourly employees
of the Paint Department. Since Department Manager Crosley was on vacation, Powers had
to escort each employee, including Green, to Human Resources. However, Powers did not
know that the purpose of the interviews was to investigate his alleged sexually harassing
2

MOBIS has been unable to produce any second complaint from Green and disputes that she
submitted it at all. Nonetheless, at the summary judgment stage, the Court credits Green’s statement
that she submitted a second complaint identifying herself as the complainant.
3

Green asserted at her deposition, for the first time, that she also reported the sexual
harassment to Iveco Gibbs days before MOBIS’s official June 14, 2011 investigation. Iveco Gibbs
was a process technician, was not a member of management or Green’s supervisor, and was not
among the personnel listed in the policy to whom employees were to report sexual harassment.
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conduct.
The first few employees of the Paint Department made no mention of sexual
harassment by Powers. When Green was interviewed by Bennett and Morgan, she first
complained only of problems with Crosley’s management style. After Bennett sensed that
there was something she was holding back, he asked Green if there were any other problems
she would like to discuss. At that point Green admitted she had submitted the April 6, 2011
UPLINK form and claimed Powers had sent her inappropriate texts and brushed up against
her. Green agreed to give her cell phone to Bennett and Morgan since it contained text
messages from Powers to Green and later gave them printed copies of some of the text
messages she had saved as e-mails.4 Bennett and Morgan also interviewed Kendrick, the
Team Leader Green had initially told about Powers in February 2011, who stated that Green
had shown him a text message from Powers and that he had suggested Green address her
concerns with Powers.
After Bennett and Morgan completed their investigation, they concluded that Powers’s
texts were inappropriate, although they did not believe they were sexually explicit. On the
evening of June 20, 2011, Bennett and Morgan recommended to Tracy Riedler (“Riedler”),
General Manager of Human Resources, that Powers be terminated. On the morning of June
21, 2011, Powers was terminated and escorted off MOBIS premises. This was one week

4

None of the text messages produced as a result of the investigation contained sexually
explicit images. Many of the texts were work related, and some were of a sexual nature, e.g.,
“Wanna come hold it . . . ha ha,” “U look cute . . .,” “kiss kiss.”
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after MOBIS began its investigation and approximately two to three weeks after MOBIS
received Green’s April 6, 2011 complaint from the UPLINK box. Green also admits that
Powers did not sexually harass her from the time MOBIS began its investigation on June 14
until the time it terminated Powers on June 21.
On June 21, 2011, the same day Powers was fired, Green submitted her first charge
of discrimination with the Equal Opportunity Employment Commission (“EEOC”). Green
charged MOBIS with sex discrimination based on Powers’s sexual harassment as well as
retaliation. Green’s retaliation claim was based on what she perceived as her removal from
a Team Leader position following her complaints. On April 1, 2011, Powers was promoted
to Supervisor. Powers remained on the first shift to train for the Supervisor position and also
retained some of his Team Leader duties. Green was told by Crosley that she would be
“Active” or “Acting” Team Leader while Powers transitioned to the Supervisor position.
Green was not told she would receive an increase in pay, and she did not receive formal
training for the Team Leader position. She performed some, but not all, of the functions of
a Team Leader, and it is common for Team Members to perform the functions of Team
Leaders when necessary. No official MOBIS documents show that Green was promoted to
the Team Leader position. An unofficial telephone directory created by a receptionist
identified Green as a Team Leader, but Green identified herself as a “Paint Color Tester” on
a pre-request for FMLA leave and as a “Color Code Tester” on her EEOC intake form.
During the period in which Powers was training for the Supervisor position and
splitting his Team Leader duties with Green, Kendrick was offered a chance to transfer from
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his second-shift Team Leader position to the first shift, which was Green’s shift. Kendrick
was offered this opportunity before it was posted for other employees because he was
currently a Team Leader. Green continued to perform some of the duties of a Team Leader
after Powers was terminated in June 2011. After the plant reopened following an extended
closing for the July 4th holiday, Kendrick began acting as Team Leader for the first shift, and
there was no longer any need for Green to perform any Team Leader duties for that shift.
Kendrick’s transfer from second to first shift created a Team Leader vacancy for the second
shift, but Green did not apply for that position. Green states that Bennett told her in a
meeting regarding Powers’s harassment that she had never been a Team Leader, (Doc. #60-1,
at 29), but Bennett denies this. (Doc. #61-9, at ¶ 31.) Regardless, it is undisputed that no
official MOBIS records reveal Green was promoted to Team Leader, and she was never told
she would be paid more for temporarily assuming the duties of “Acting” or “Active” Team
Leader.
During the course of her employment at MOBIS, Green requested and received
approval for leave under the Family Medical Leave Act (“FMLA”) to take her father to
doctor’s visits. Under MOBIS’s attendance policies, employees accrue points for unexcused
absences but do not accrue points for FMLA leave. MOBIS requires employees to first
substitute accrued vacation for FMLA leave. MOBIS also has a policy of confirming
doctor’s appointments for employees who submit copies of doctor’s excuses, rather than
originals, when requesting FMLA leave.
In October 2011, after Green had exhausted her accrued vacation, MOBIS received
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a copy of a doctor’s note from Extended Arm Physicians referring Green’s father for an
appointment with Dr. Gregory Hoffpauir on October 17–18, 2011.

Ashley Brooks

(“Brooks”), MOBIS’s FMLA Coordinator, noticed that the doctor’s referral note for October
17–18, 2011, including handwritten portions and other unique marks, appeared identical to
a note Green submitted for FMLA leave for doctor’s visits on June 21–22, 2011. Brooks
called Dr. Hoffpauir’s office and verified that Green was not at his office with her father on
October 17–18, 2011. It is undisputed that Green did not attend work on October 17, 2011,
but instead attended a recital at her son’s school. It is also undisputed that she worked a
twelve-hour shift on October 18, 2011.
On October 28, 2011, Bennett, Morgan, Plastics Division Manager Sunggoo Heo
(“Heo”), and Team Relations Representative Kimberly Pinkard (“Pinkard”) met with Green
to advise her they were investigating what they believed were falsified doctor’s notes that
Green had submitted. Green admits she remembers being asked about October 18 but does
not remember whether she was asked about October 17. (Doc. #60-2, at 24–27.) Green told
Bennett, Morgan, Heo, and Pinkard in the meeting that she worked on October 18. Green
further claims that she was not shown any of the potentially falsified excuses and that she
offered to provide original doctor’s excuses. However, Green has not produced original
doctor’s notes for the June 21–22, 2011 or the October 17–18, 2011 doctor’s visits.
Green now claims that she submitted neither the June nor the October doctor’s notes
to MOBIS and that she has no idea how MOBIS came to have doctor’s notes for her father
in its possession. (Doc. #60-2, at 25–26.) However, in his deposition, Kevin Green, Noria
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Green’s husband, testified that he showed his children how to forge doctor’s excuses, and
that Green was in bed nearby at the time. (Doc. #91-1, at 10–11.) Kevin Green states
specifically that he showed his children how to black out dates on doctor’s excuses to allow
for the insertion of a new date, and that the children showed Noria Green the forged
documents they had produced with their father’s help. (Doc. #91-1, at 23.) Still, Kevin
Green did not admit to personally forging the doctor’s note for the October 17–18, 2011
visits and could not recall whether he had seen the October 17–18 notes, but did admit the
documents he showed his children how to forge were “similar.” (Doc. #91-1, at 24.)
On November 4, 2011, Green met again with Bennett, Morgan, Heo, and Pinkard to
discuss the doctor’s notes. Green was informed that MOBIS had verified her doctor’s notes
and that they believed she had provided falsified documents in requesting FMLA leave.
MOBIS then informed Green that it was terminating her for falsifying doctor’s excuses. It
is undisputed that, had Green provided forged doctor’s notes to MOBIS, this would have
been grounds for termination. (Doc. #59, at 20; Doc. #78, at 22.) Green filed a second
EEOC charge on December 1, 2011 alleging her termination was retaliation for her filing a
June 21, 2011 charge of discrimination.
Prior to her termination, Green had applied for a mortgage with Acre Mortgage
Company (“Acre”). On October 24, 2011, Acre submitted a Request for Verification of
Employment to MOBIS, which MOBIS employee Monique Coleman completed and
returned. The form MOBIS sent to Acre accurately reflected that Green was employed at the
time and her rate of hourly pay. On January 20, 2012, after Green was initially denied a
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mortgage with Acre, Acre sent a second Request for Verification of Employment to MOBIS.
Coleman again completed the form and returned it to Acre. The form accurately reflected
that Green was no longer employed with MOBIS. Since the verification form reflected that
Green was unemployed, Acre apparently denied her a mortgage a second time.
Following her termination from MOBIS, Green sought unemployment benefits from
the Alabama Department of Industrial Relations (“ADIR”). Bennett, on behalf of MOBIS,
opposed Green’s collection of unemployment compensation, claiming Green had been
discharged for falsifying documents. ADIR initially determined Green was ineligible for
benefits under Alabama Code § 25-4-78(a)(3), which disqualifies individuals from receiving
unemployment if they were discharged for “a dishonest or criminal act committed in
connection with [the employee’s] work.” Green appealed this initial determination, and a
telephone hearing was held on December 16, 2011, with a representative from ADIR’s
Hearings and Appeals Division. Green, her counsel, and Bennett, as representative for
MOBIS, were present for this telephone hearing. (Doc. #83-1, at ¶ 3.) However, the
December 16 telephone hearing was continued after the ADIR hearing officer asked MOBIS
to produce the documents they claimed Green had falsified. (Doc. #81, at 08:48.)5
The hearing was continued to January 4, 2012, but as the result of a plant shutdown
over the holiday period of December 2011, Bennett did not receive notice that the hearing
had been rescheduled. As a result, MOBIS was not represented at the January 4, 2012

5

Doc. #81 refers to an audio recording of the January 4, 2012 ADIR telephone hearing.
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appeal, and the ADIR hearing officer proceeded with the appeal in the absence of both the
supporting documents from MOBIS containing the purportedly falsified doctor’s excuses and
a representative from MOBIS. The hearing officer concluded that Green had not provided
a note for October 17 or 18, 2011, and that Green had not committed a dishonest act that led
to her discharge. When Bennett found out that the hearing had been conducted in his
absence and without the doctor’s notes in question, he wrote to the Hearings and Appeals
Division of ADIR seeking to appeal the January 4, 2012 appeal, but his requests for an
appeal were denied.
IV. DISCUSSION
A.

Green’s Motions to Strike
Before turning to the merits of MOBIS’s motion for summary judgment, the Court

must first resolve Green’s Motion to Strike the Declaration of Kevin Green (Doc. #78, at ¶
59) and her Motion to Strike Defendant’s Supplemental Evidentiary Submission (Doc. #92).
1.

Declaration of Kevin Green

Green moves to strike Kevin Green’s declaration as a sham on the grounds that he
repudiates the testimony given in his declaration in his subsequent deposition. In Tippens
v. Celotex Corporation, the Eleventh Circuit stated the criterion for when an affidavit or
declaration should be stricken as a sham. 805 F.2d 949 (11th Cir. 1986). Where statements
in an affidavit are “inherently inconsistent” with deposition testimony, the statements in the
affidavit may be stricken as a sham. 805 F.2d at 953–54. But where the discrepancies
between the affidavit and deposition do not create “irreconcilable conflict,” the affidavit is
15

not stricken, and the inconsistencies create an issue of credibility or go to the weight of the
evidence, with such issues resolved in favor of the non-moving party at summary judgment.
Id.; see also Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987) (“Thus, our
cases require a court to find some inherent inconsistency between an affidavit and a
deposition before disregarding the affidavit.”). The Court finds that three key paragraphs of
Kevin Green’s declaration are inherently inconsistent with statements made in his subsequent
deposition, and, therefore, they must be stricken as a sham.
In paragraph three of his declaration, Kevin Green states of the doctor’s note that led
to Green’s discharge, “I showed her how to remove (blank out) dates from a medical excuse
for an earlier absence so she could replace those dates with dates including October 17, 2011,
when she was absent.” (Doc. #61-13, at ¶ 3.) The same paragraph also states that the
October 17–18, 2011 doctor’s note is the one Kevin Green showed Noria Green how to
forge. However, in his subsequent deposition, Kevin Green testified that he showed his
children how to forge doctor’s excuses, that Green was lying in bed in an adjoining room,
and that Green’s children showed her some of the forged documents. (Doc. #91-1, at 10–11,
23.) He further testified in his deposition, “I never showed Noria anything.” (Doc. #91-1,
at 13.) Finally, Mr. Green testified that he did not specifically recall seeing the doctor’s
notes for June 21–22 and October 17–18, 2011, but that the documents he showed his
children to alter were “similar.” (Doc. #91-1, at 24.) The Court finds this deposition
testimony to be inherently inconsistent with Kevin Green’s statements in paragraph three of
his declaration that he directly showed Noria Green how to change dates on doctor’s notes
16

and that he specifically recalled helping her alter the October 17–18, 2011 doctor’s notes.
In paragraph five of his declaration, Kevin Green states he showed Noria Green how
to alter a 401(k) distribution notice from MOBIS to conceal the fact that she had been
terminated before she sent it to Acre as part of her mortgage application. (Doc. #61-13, at
¶ 5.) However, in his deposition, Kevin Green testified, “I never touched no mortgage,” and
that he did not personally show Green how to forge documents in connection with her
mortgage application. (Doc. #91-1, at 13.) The Court likewise finds these statements
inherently inconsistent with the statements of paragraph five of the declaration.
In paragraph six of his declaration, Kevin Green states that he falsely denied changing
the doctor’s excuses and the 401(k) form to Noria Green’s law firm, and that making the
false statements was “a mistake which I could not live with.” (Doc. #61-13, at ¶ 6.) He goes
on to state that he contacted a paralegal at Noria Green’s law firm and told her he had lied
and that Green’s law firm has asked him to change his story since then but he has not. In his
deposition, Kevin Green read paragraph six of his own declaration out loud and stated,
“That’s a lie. That’s just a blatant lie. I’m not going to sit here and accept that.” (Doc. #911, at 13.) Kevin Green’s explicit repudiation of his own declaration during his deposition is
inherently inconsistent with paragraph six of his declaration. Indeed, Kevin Green testified
on several occasions that he did not even read his own declaration before signing it. (Doc.
#91-1, at 5, 22, 30.) Accordingly, Green’s Motion to Strike the Declaration of Kevin Green
(Doc. #78) is GRANTED, and paragraphs 3, 5, and 6 of Kevin Green’s declaration (Doc.

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#61-13) are hereby STRICKEN.6 These statements played no part in the Court’s earlier
statement of undisputed facts.
2.

Defendant’s Supplemental Evidentiary Submission

Green has also filed a Motion to Strike Defendant’s Supplemental Evidentiary
Submission (Doc. #92). Green objects to MOBIS’s submission of an audio recording of the
January 4, 2012 telephone hearing with ADIR on the grounds that the new evidence was
presented too late and was not previously disclosed by MOBIS. The purpose of the
submission of the audio recording with MOBIS’s supply brief was to refute Green’s
argument, introduced for the first time in her brief in opposition to summary judgment, that
ADIR’s finding that Green did not commit misconduct collaterally estopped MOBIS from
claiming Green was terminated for falsifying doctor’s notes. The Court finds that Green’s
motion to strike is due to be denied.
First, there is no rule prohibiting MOBIS from submitting additional evidence in
support of its reply brief–especially when such evidence is introduced to respond to an
argument made for the first time by Green in her opposition brief. Such supplemental
evidentiary submissions are routine in this Court and district courts throughout the Eleventh
Circuit, and to suggest MOBIS is violating a rule of law or court order is disingenuous. See,
e.g., Hegre v. Alberto-Culver USA, Inc., 508 F. Supp. 2d 1320, 1327–28 (S.D. Ga. 2007).

6

The Court does not strike paragraph four, which states that Noria Green gave the doctor’s
notes in question to MOBIS, but disregards it since it is not based on Kevin Green’s personal
knowledge.
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The audio recording of the ADIR hearing and supplemental declaration of Bennett did not
introduce new claims or theories by MOBIS to which Green could not respond, but rather
were introduced to respond to the claim that MOBIS was collaterally estopped by an
administrative hearing in which it did not even participate.
Second, Green argues that MOBIS failed to supplement their disclosures to include
the audio recording under Federal Rule of Civil Procedure 26(e), and that MOBIS is
consequently barred from using the evidence pursuant to Rule 37. Rule 26(e) requires parties
to supplement disclosures if “the party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process . . . .” Fed R.
Civ. P. 26(e)(1)(A) (emphasis added).

In this case, the “additional or corrective

information,” namely the audio recording of the ADIR hearing, was “otherwise made
known” to Green during the discovery process. This is because counsel for Green
participated in the hearing itself and because Green produced the ADIR records to MOBIS.
Green can hardly claim to be unaware of a record of a hearing in which she and her counsel
participated.
Even assuming MOBIS had failed to supplement its disclosures in violation of Rule
26(e), it would be fundamentally unfair to prevent MOBIS from introducing evidence that
it was not represented at the ADIR telephone hearing in response to Green’s false statement
that MOBIS was represented at the hearing. See Murphy v. Magnolia Elec. Power Ass’n,
639 F.2d 232, 234–35 (5th Cir. Mar. 12, 1981) (holding it was reversible error to prevent
19

plaintiff’s expert witness from testifying in rebuttal to defense’s witness even though
plaintiffs failed to disclose witness in violation of Rule 26(e)).7 Green’s sworn declaration
contains the following statement: “The Hearings and Appeals Division of the DIR conducted
a hearing of my appeal on January 4, 2012 and MOBIS was present.” (Doc. #77-1, ¶ 50)
(emphasis added). The statement that MOBIS was present at the telephone hearing is
completely false, as the audio recording makes clear; indeed, the hearing officer attempts to
contact Bennett three times and fails due to the plant shutdown. The hearing officer then
proceeds with the appeal without MOBIS’s participation and without having received the
doctors’ notes MOBIS claimed Green falsified. (Doc. #81, at 10:05.)
Incredibly, Green and her counsel were present at the telephone hearing, which was
clearly conducted in MOBIS’s absence, and yet Green’s sworn declaration states that
MOBIS was present at the hearing. Even more incredibly, Green seeks to strike MOBIS’s
submission of the audio recording that would prove Green’s statement to be false. Green
essentially asks this Court to give the ADIR hearing issue preclusive effect against MOBIS
on the basis of Green’s false statement that MOBIS was represented at the hearing and,
further, to prevent MOBIS from presenting evidence demonstrating Green’s falsehood. The
position Green’s counsel has taken on the January 4, 2012 ADIR hearing proves the truth of
Benjamin Franklin’s maxim, “Half the truth is often a great lie.” The Court declines to

7

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981) (en banc),
the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.
20

further perpetuate or condone such conduct. Accordingly, Green’s Motion to Strike
Defendant’s Supplemental Evidentiary Submission (Doc. #92) is DENIED.
B.

MOBIS’s Motion for Summary Judgment
Green brings claims against MOBIS under Title VII for sexual harassment (Count

1), gender discrimination (Count 2), and retaliation (Count 3). (Doc. #42.) She also brings
claims against MOBIS under the Equal Pay Act (Count 8), and the Family and Medical
Leave Act (Count 9). Green asserts state law claims against both Powers and MOBIS for
negligent and wanton hiring/training (Count 4), invasion of privacy (Count 5), assault and
battery (Count 6), and intentional infliction of emotional distress (Count 7). MOBIS has
moved for summary judgment as to all claims against it. (Doc. #58.) Powers has not moved
for summary judgment.
1.

Sexual Harassment

Green alleges both quid pro quo and hostile work environment sexual harassment
claims against MOBIS. (Doc. #42, at ¶¶ 43–57.) However, Green does not allege that
Powers engaged in any quid pro quo sexual harassment in her Amended Complaint, and in
her deposition, Green conceded that Powers never offered to give or withhold benefits from
her in exchange for sexual favors. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753
(1998) (“When a plaintiff proves that a tangible employment action resulted from a refusal
to submit to a supervisor’s sexual demands, he or she establishes that the employment
decision itself constitutes a change in the terms and conditions of employment that is
actionable under Title VII.”). Accordingly, summary judgment is GRANTED in favor of
21

MOBIS as to Green’s quid pro quo sexual harassment claim in Count 1 of the Amended
Complaint. This leaves Green’s claim of sexual harassment based on Powers’s creation of
a hostile work environment.
Title VII prohibits sex-based discrimination that alters the terms and conditions of
employment. 42 U.S.C. § 2000e2(a)(1). Title VII’s prohibition of sex discrimination
includes sexual harassment based on actions that create a hostile work environment.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245–46 (11th Cir. 1999) (citing Meritor Savs.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). To establish a hostile work environment, an
employee must show that the harassing conduct was sufficiently severe or pervasive to alter
the employee’s terms or conditions of employment. Mendoza, 195 F.3d at 1246 (citation
omitted). The employee must subjectively perceive the conduct as severe and pervasive, and
this perception must also be objectively reasonable, i.e., the environment must be one that
a reasonable person would find hostile or abusive. Id. (quotation and citation omitted).
Since the Court finds that MOBIS is entitled to summary judgment on an affirmative defense,
the Court makes no finding concerning whether Powers’s harassment of Green was
subjectively and objectively severe and pervasive sufficient to alter the terms and conditions
of her employment.
Where, as here, the employer’s liability is based on the creation of a hostile work
environment by the plaintiff’s co-worker or supervisor,8 the employer may avoid liability

8

“The supervisor does not have to be the harasser for this kind of sexual harassment to occur,
although experience has proven that he often will be.” Hulsey v. Pride Rests., LLC, 367 F.3d 1238,
22

under the Faragher-Ellerth affirmative defense. See Faragher v. City of Boca Raton, 524
U.S. 775, 807–08 (1998); Ellerth, 524 U.S. at 765. An employer may avoid liability for an
employee’s sexual harassment if the employer proves the following two elements by a
preponderance of the evidence: (1) that the employer exercised reasonable care to prevent
and to correct promptly any sexually harassing behavior; and (2) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765. A demonstration of
an employee’s failure to reasonably follow the employer’s complaint procedure “will
normally suffice to satisfy the employer’s burden under the second element of the defense.”
Id.
The first element of the Faragher-Ellerth defense requires the employer to exercise
reasonable care to prevent and to promptly correct sexual harassment. An employer shows
that it has exercised reasonable care to prevent sexual harassment by disseminating a sexual
harassment policy with reasonable complaint procedures. Frederick v. Sprint/United Mgmt.
Co., 246 F.3d 1305, 1314 (11th Cir. 2001). It is undisputed that MOBIS disseminated its
policy. Green received the policy at least three times during the course of her employment
with MOBIS and also received annual sexual harassment training. MOBIS’s policy also
contains reasonable complaint procedures.

A policy contains reasonable complaint

1245 (11th Cir. 2004). Powers was a non-supervisory Team Leader from January through April
2011, and a Supervisor from April through June 2011, during which time he sexually harassed
Green.
23

procedures if it provides alternative avenues to report sexual harassment in the event the
harasser is an employee’s supervisor. See Madray v. Publix Supermkts., Inc., 208 F.3d 1290,
1298 (11th Cir. 2000) (finding policy complied with EEOC guidelines by providing
alternative avenues to employees for lodging a complaint other than the harassing
supervisor).

MOBIS’s policy defines sexual harassment, prohibits it, and instructs

employees to promptly report sexual harassment “to the aggrieved Team Member’s
Supervisor, Department Manager, Team Relations Department, or HR.” (Doc. #60-4, at 56.)
MOBIS’s policy thus provides alternative avenues for reporting harassment. As a result of
its policy, MOBIS took reasonable care to prevent sexual harassment.
The first element of the Faragher-Ellerth defense also requires employers to promptly
correct sexual harassment once the employer becomes aware of it. Once MOBIS became
aware of the April 6, 2011 anonymous complaint about Powers in late May or early June
2011, it immediately posted a response on the bulletin board by the UPLINK box reminding
employees to report sexual harassment to their Supervisor or Team Relations. (Doc. #61-9,
at 17.) When no response followed, Bennett and Morgan began interviewing random
employees from the Paint Department on June 14, 2011. Even when Green was interviewed,
she did not discuss Powers sexual harassment until Bennett asked her if there was anything
else she would like to discuss.

After Green revealed Powers’s text messages and

inappropriate touching to Bennett and Morgan, Powers was investigated and terminated
within one week. The Court finds that MOBIS took prompt corrective action upon the
discovery of the April 6, 2011 complaint in late May or early June by posting the notice of
24

how to properly report harassment, subsequently interviewing members of the Paint
Department, and then investigating and terminating Powers, all within the course of three to
four weeks.
Green argues that MOBIS did not take prompt corrective action to correct Powers’s
sexual harassment because it did not receive her April 6 UPLINK complaint until late May
or early June. The question of whether an employer timely acted to correct harassment turns
on when it had proper notice of an employee’s harassment complaint. Frederick, 246 F.3d
at 1315. And the question of when an employer has notice of an employee’s harassment
complaint in turn depends on when the employee reported the complaint according to the
procedures specified by the employer. See Coates v. Sundor Brands, Inc., 164 F.3d 1361,
1364 (11th Cir. 1999) (“With this policy, Sundor itself answered the question of when it
would be deemed to have notice of the harassment sufficient to obligate it or its agents to
take prompt and appropriate remedial measures. Our task is thus to determine whether [the
plaintiff] made reasonably sufficient use of the channels created by Sundor’s policy to put
Sundor on notice of the ongoing harassment.”). MOBIS’s policy states that an employee
subjected to sexual harassment “has a duty to immediately report the matter. MOBIS
provides multiple avenues for reporting harassment to the aggrieved Team Member’s
Supervisor, Department Manager, Team Relations Department, or HR. If you do not receive
prompt acknowledgment of your complaint from Team Relations or HR, notify HR
immediately.”

Placing an anonymous complaint in a dropbox is not a means of

“immediately” reporting sexual harassment, and the policy further requires employees to
25

notify HR if they do not receive a “prompt acknowledgment” of their complaint. Even if it
is true that Green placed a second, signed complaint in the UPLINK box, this was not a
reasonable way of notifying HR. MOBIS never specified that the UPLINK system could be
used to report sexual harassment or stated that the UPLINK boxes would be checked with
frequency. By contrast, Green’s Supervisor and members of Team Relations were present
on the floor every day and were available to receive complaints of sexual harassment, yet
Green made no complaints to them. MOBIS cannot be blamed for Green’s choice to report
sexual harassment by means of an anonymous complaint placed in a dropbox, and it
indisputably acted promptly once it received the complaint.
Even if there were shortcomings in MOBIS’s investigation into Green’s anonymous
complaint, the Eleventh Circuit has held that “even if the process in which an employer
arrives at a remedy in the case of alleged sexual harassment is somehow defective, the
[Faragher-Ellerth] defense is still available if the remedial result is adequate . . . In other
words, a reasonable result cures an unreasonable process.” Baldwin v. Blue Cross/Blue
Shield of Ala., 480 F.3d 1287, 1305 (11th Cir. 2007). A remedial measure is adequate if it
is “reasonably likely to prevent the misconduct from recurring.” Kilgore v. Thompson &
Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir. 1996) (quotation and citation omitted). Here,
given that Green chose to complain by anonymous complaint submitted in a dropbox, any
shortcomings in MOBIS’s investigation were overcome by the remedial measures it took.
Green concedes that Powers did not harass her during the time that MOBIS investigated him,
and terminating Powers was clearly “reasonably likely to prevent the misconduct from
26

recurring.” Kilgore, 92 F.3d at 754. Therefore, because the Court finds that MOBIS
exercised reasonable care to prevent and to promptly correct sexual harassment, MOBIS has
met the first element of the Faragher-Ellerth defense.
The second element of the Faragher-Ellerth defense requires MOBIS to show that
Green unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765. While the
Court recognizes the seriousness of Green’s sexual harassment claims, a careful reading of
Eleventh Circuit precedent applying the Faragher-Ellerth defense persuades the Court that
Green unreasonably failed to follow the MOBIS’s corrective measures. First, where an
employer’s sexual harassment policy enumerates specific members of management to whom
employees must report harassment, an employer is not on notice of an employee’s
harassment if the employee reports the harassment to members of management not specified
in the policy. See Madray v. Publix Supermkts., Inc., 208 F.3d 1290, 1300 (11th Cir. 2000);
Breda v. Wolf Camera & Video, 222 F.3d 886, 889–90 (11th Cir. 2000); Coates, 164 F.3d
at 1364. Second, where an employer’s sexual harassment policy requires employees to
promptly report sexual harassment, a delay of two-and-a-half to three-and-a-half months,
absent exceptional circumstances, is unreasonable as a matter of law. See Baldwin, 480 F.3d
at 1307; Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1289–91 (11th Cir. 2003).
The Madray case illustrates that employees must report sexual harassment to the
personnel specified in the employer’s policy. The policy in Madray required employees to
report sexual harassment to their Store Manager, District Manager, or Divisional Personnel
27

Manager. 208 F.3d at 1294. The employees in Madray informed two mid-level managers
of their Store Manager’s sexual harassment, and a third mid-level manager even witnessed
an instance and told the offending Store Manager, “That’s sexual harassment.” Id. at 1293.
The Eleventh Circuit held that Publix was not on notice of the sexual harassment as a result
of these reports to mid-level managers not specified in the policy:
However, as we have noted, once an employer has promulgated
an effective anti-harassment policy and disseminated that policy
and associated procedures to its employees, then it is incumbent
upon the employees to utilize the procedural mechanisms
established by the company specifically to address problems and
grievances . . . Therefore, we conclude that Publix cannot be
considered to have been placed on notice of [the Store
Manager’s] harassing behavior by the plaintiffs’ informal
complaints to individuals not designated by Publix to receive or
process sexual harassment complaints.
Id. at 1300 (quotation and citation omitted). See also Frederick, 246 F.3d at 1315–17
(remanding to district court for a finding of whether policy was in place requiring employees
to report to supervisor or Human Resources or whether policy was in place allowing
employees to report to “another member of management with whom [she is] comfortable”
and holding such a finding was dispositive of whether employee reasonably followed
employer’s reporting procedures); Breda, 222 F.3d at 889–90 (holding employer was on
notice of sexual harassment once store manager was aware of it since employees were
directed to report harassment to store managers or the Personnel Department). The policy
of requiring employee adherence to an employer’s reporting procedures is based on the
recognition that “the problem of workplace discrimination . . . cannot be [corrected] without

28

the cooperation of the victims, notwithstanding that it may be difficult for them to make such
efforts.” Coates, 164 F.3d at 1366.
These cases make clear that Green’s attempts to report harassment were unreasonable
insofar as she attempted to report sexual harassment to personnel not specified in MOBIS’s
policy. MOBIS’s sexual harassment policy requires employees to report harassment to “the
aggrieved Team Member’s Supervisor, Department Manager, Team Relations
Department, or HR.” (Doc. #60-4, at 56) (emphasis added). This policy enumerates
members of management to whom employees must report harassment, just as the policy in
Madray, and it is similar to other policies the Eleventh Circuit has upheld as reasonable
because it includes alternative members of management with whom an employee may
communicate. Green endured Powers’s harassment for nearly a month before she discussed
the problem with Team Leader Kendrick in February 2011. Team Leaders are not members
of management and are not listed in the policy as individuals to whom sexual harassment can
be reported. Therefore, MOBIS was not on notice of Powers’s harassment of Green in
February 2011. On April 6, 2011, two months after her conversation with Kendrick, and
three months after the sexual harassment began, Green placed an anonymous complaint in
the UPLINK box.9 The UPLINK boxes were checked by members of Team Relations, who
were among the members of management specified in the policy to whom sexual harassment

9

Approximately two months later, Green expressed her concerns to Iveco Gibbs, a process
technician who was neither a member of management nor designated to receive complaints in the
policy. MOBIS was not put on notice of Green’s harassment by this complaint either.
29

could be reported. But, as discussed above, the policy requires employees to “immediately”
report sexual harassment and to immediately report to HR if they do not receive a “prompt
acknowledgment” of their complaint. Thus, even if Green was reasonable in using the
UPLINK box as a means of reporting sexual harassment to management, she waited too long
to complain.
In Baldwin, the court affirmed summary judgment in favor of the employer holding
that the plaintiff’s failure to report the sexual harassment sooner established the second
element of the Faragher-Ellerth defense. 480 F.3d at 1306. Like MOBIS’s policy, the
policy in Baldwin required employees to report sexual harassment “immediately.” Id. The
plaintiff in Baldwin reported the sexual harassment a little over three months after she was
propositioned by her manager, and the court held that this was “anything but prompt, early,
or soon.” 480 F.3d at 1307. The Baldwin court cited Walton in support of its conclusion.
In Walton, the plaintiff waited two-and-a-half months before reporting sexual harassment,
and the court likewise held that this delay established the unreasonableness of the employee’s
conduct as required by the second element of the Faragher-Ellerth defense. 347 F.3d at
1289–91. The policy behind shielding employer’s from Title VII liability when an employee
delays reporting harassment is that “most, if not all, of the actionable harassment” of the
plaintiff could have been avoided through prompt reporting. Id. at 1290. As the Baldwin
court states: “The Faragher and Ellerth decisions present employees who are victims of
harassment with a hard choice: assist in the prevention of harassment by promptly reporting
it to the employer, or lose the opportunity to successfully prosecute a Title VII claim based
30

on the harassment.” 480 F.3d at 1307.
Green waited three months to report sexual harassment to MOBIS in a way that did
not even comply with MOBIS’s complaint procedures. Green reports that Powers’s
harassment began in January 2011, but she did not place her anonymous complaint in the
UPLINK box until April 6, 2011. Even assuming Green’s method of reporting harassment
through the UPLINK system was reasonable, her delay of three months was unreasonable
under the Baldwin and Walton decisions, and her delay establishes the second element of the
Faragher-Ellerth defense for MOBIS.
Green states that she did not report the harassment to her Supervisor, Don Crosley,
because Crosley was friends with Powers and she was afraid of retaliation. (Doc. #60-1, at
61.) She also stated that she did not report the harassment because she was afraid no one
would believe her. (Doc. #60-1, at 67.) These reasons are insufficient to justify Green’s
delay in promptly reporting sexual harassment. Crosley’s purported friendship with Powers
is irrelevant because MOBIS’s sexual harassment policy provided alternative channels for
Green to report the harassment, namely to Team Relations or HR. Further, Green’s fears that
she would suffer retaliation and that no one would believe her are not based on any objective
evidence and do not excuse her delay in reporting the harassment. The Eleventh Circuit has
stated that “subjective fears of reprisal do not excuse” an employee’s failure promptly to
report sexual harassment. Walton, 347 F.3d at 1290–91. Otherwise, “[e]very employee
could say . . . that she did not report the harassment earlier for fear of losing her job or
damaging her career prospects.” Baldwin, 480 F.3d at 1307. An employee has good reason
31

to delay promptly reporting sexual harassment only in “extreme cases.” Id. (citing Frederick,
246 F.3d at 1314). In Frederick, there were disputed issues of fact about what sexual
harassment policy was in place that affected whether the employee was reasonable in
delaying her report of sexual harassment. In addition, the employee stated that when she
complained about the harassment to the supervisor, he told her not to file a report to Human
Resources. 246 F.3d at 1316. Green can point to no circumstances, such as those in
Frederick, that justify her delay in reporting harassment. Her subjective fears of retaliation
are simply insufficient. Thus, the Court finds that MOBIS has established both elements of
the Faragher-Ellerth defense because MOBIS took reasonable care to prevent and to
promptly correct Powers’s sexual harassment and because Green unreasonably failed to use
MOBIS’s preventive measures or to avoid harm.

Therefore, summary judgment is

GRANTED in favor of MOBIS as to Green’s sexual harassment claim in Count 1 of the
Amended Complaint (Doc. #42).
2.

Gender Discrimination and Equal Pay Act

Green asserts Title VII gender discrimination (Count 2) and an Equal Pay Act
violation (Count 8) against MOBIS. To establish a prima facie case of disparate treatment,
Green must show 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 male employees more
favorably; and (4) she was qualified to do the job. Maniccia v. Brown, 171 F.3d 1364, 1368
(11th Cir. 1999) (citation omitted). To establish a prima facie case under the Equal Pay Act,
Green must show that “an employer pays different wages to employees of opposite sexes for
32

equal work on jobs the performance of which requires equal skill, effort, and responsibility,
and which are performed in similar working conditions.” Waters v. Turner, Wood & Smith
Ins. Agency, Inc., 874 F.2d 797, 799 (11th Cir. 1989) (internal quotation and citation
omitted).
Green’s gender discrimination and Equal Pay Act claims are both based on her
assertion that she was promoted to Team Leader but did not receive additional pay. Green’s
claims are without merit because the undisputed facts show that Green was never promoted
to Team Leader, and, therefore, she was not entitled to any increase in pay. When Powers
was promoted to Supervisor in April 2011, Green performed some of the duties of a Team
Leader while Powers trained for the Supervisor position. After Powers was terminated,
Green was asked to be “Acting” or “Active” Team Leader. Green continued to perform
some Team Leader functions until Kendrick transferred from the second shift Team Leader
position to the first shift Team Leader position. There is no position at MOBIS for “Acting
Team Leader,” and Green was not told she would receive increased pay. It is common for
MOBIS Team Members to perform the functions of Team Leaders when necessary. No
official MOBIS documents show that Green was promoted to the Team Leader position. An
unofficial telephone directory created by a receptionist identified Green as a Team Leader,
but Green identified herself as a “Paint Color Tester” on a pre-request for FMLA leave and
as a “Color Code Tester” on her EEOC intake form. The undisputed evidence thus shows
that Green was informally asked to perform some of the functions of a Team Leader for a
limited time but that she was never promoted to Team Leader.
33

Since Green was never a Team Leader, there was no adverse employment action or
pay disparity by MOBIS. MOBIS cannot be liable for failing to pay Green for a promotion
she never received. Therefore, summary judgment is GRANTED in favor of MOBIS on
Green’s gender discrimination and Equal Pay Act claims in Counts 2 and 8 of the Amended
Complaint.10
3.

Retaliation

Green asserts a Title VII retaliation claim against MOBIS (Count 3) based on her
alleged removal from a Team Leader position, alteration of some of her paper work, her
termination for allegedly providing falsified doctor’s notes in connection with her request for
FMLA leave, and the paperwork MOBIS gave to Acre Mortgage that resulted in a denial of
Green’s mortgage.11
a.

Green’s collateral estoppel argument

Before addressing the merits of Green’s retaliation claim, the Court must first address
Green’s argument that ADIR’s finding that Green’s termination from MOBIS was not the
result of her misconduct has preclusive effect in this case.
Federal courts must give a State administrative agency’s findings the same preclusive
10

Green also points to documents that were supposedly altered as a basis for her gender
discrimination claim. (Doc. #42, ¶¶ 33–38; Doc. #78, at 94.) Green has been able to produce only
a Power Rinse Check Sheet with a male co-worker’s name on it. Further, Green was never
disciplined for any alteration of paperwork that may have occurred. As a result, the alteration of
paperwork was not an adverse employment action.
11

Green has abandoned her claim of retaliation based on an April 2011 work assignment
requiring her to go to a lot at a Hyundai manufacturing facility to ensure the cars’ bumpers matched
the color of the car. (Doc. #78, at 23.)
34

effect to which it would be entitled in the State’s courts. Univ. of Tenn. v. Elliott, 478 U.S.
788, 799 (1986). Under Alabama law, a finding by ADIR that an employee was discharged
for misconduct connected with the employee’s work can have preclusive effect against an
employee in subsequent litigation against an employer. Wal-Mart Stores, Inc. v. Smitherman,
743 So. 2d 442 (Ala. 1999), overruled on other grounds by Ex parte Rogers, 68 So. 3d 773
(Ala. 2010). However, the Alabama Court of Civil Appeals has held that a finding by ADIR
that an employee did not engage in misconduct does not have preclusive effect against an
employer in subsequent litigation. Hale v. Hyundai Motor Mfg., Ala., LLC, 86 So. 3d 1015,
1024–25 (Ala. Civ. App. 2012). This is because there is no identity of issues when an
employee uses a finding of no misconduct by ADIR to support a retaliatory discharge claim.
There is no identity of issues because a finding by ADIR that an employee was not
discharged for misconduct for the purposes of the unemployment compensation statute does
not compel the conclusion that the employer had no good reason for firing an employee. Id.
That is, an employer may have reasonable grounds for discharging an employee that fall
below the threshold necessary to constitute “misconduct” in the unemployment benefits
context. Thus, Green cannot use ADIR’s finding that she was not discharged for workrelated misconduct to preclude MOBIS from arguing that she was discharged for misconduct
in this litigation.
Even if Green could use ADIR’s finding for the purposes of collateral estoppel, her
argument fails because the reason for Green’s discharge was not actually litigated before
ADIR since MOBIS was not present at the hearing. An issue raised in an Alabama State
35

administrative proceeding has preclusive effect if all of the following elements are met: (1)
there is identity of the parties or their privies; (2) there is identity of issues; (3) the parties had
an adequate opportunity to litigate the issues in the administrative proceeding; (4) the issues
to be estopped were actually litigated and determined in the administrative proceeding; and
(5) the findings on the issues to be estopped were necessary to the administrative proceeding.
Ex parte Shelby Med. Ctr., Inc., 564 So. 2d 63, 68 (Ala. 1990). As a review of the audio
recording of the January 14, 2012 ADIR hearing makes clear, the third and fourth elements
are not met because MOBIS was not present at the telephone hearing and had not yet
submitted the doctor’s notes that formed the basis for its termination of Green to the hearing
officer. MOBIS’s plant was closed for the holiday period, and Bennett did not receive notice
of the January 4, 2012 hearing. The hearing was conducted with the participation of only the
hearing officer, Green, and Green’s counsel. Therefore, ADIR’s finding that Green did not
engage in work-related misconduct does not have preclusive effect in this case.
b.

Retaliation

To establish a prima facie case of retaliation under Title VII, a plaintiff must
demonstrate: (1) that he engaged in statutorily protected activity; (2) that he suffered an
adverse employment action; and (3) that the adverse employment action was causally related
to the protected activity. Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1388 (11th
Cir. 1998). In the context of a retaliation claim, an adverse employment action is one that
“well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008) (quoting
36

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 (2006)). The Supreme Court
recently held that causation for Title VII retaliation claims “must be proved according to
traditional principles of but-for causation, not the lessened causation test stated in § 2000e2(m),” which requires only that the protected characteristic is “a motivating factor” behind
the adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533
(2013). That is, the employee’s engaging in statutorily protected activity must be the but for
cause of the employer’s adverse employment action.12 If the employee establishes a prima
facie case of retaliation, then the burden shifts to the employer to produce legitimate reasons
for the adverse employment action. Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712,
715 (11th Cir. 2001). If the employer does so, the employee must then show that the reasons
given by the employer were pretextual. Id.
12

The Court does not believe that the causation standard for Title VII retaliation claims in
Simmons v. Camden County Board of Education and its progeny remain good law in the wake of
Nassar. In Simmons, the Eleventh Circuit stated a plaintiff satisfies the causation requirement for
a Title VII retaliation claim with something less than but for causation:
We do not construe the “causal link” in [the Title VII retaliation]
formula to be the sort of logical connection that would justify a
prescription that the protected participation in fact prompted the
adverse action . . . Rather, we construe the “causal link” element to
require merely that the plaintiff establish that the protected activity
and the adverse action were not wholly unrelated.
757 F.2d 1187, 1189 (11th Cir. 1985). See also E.E.O.C. v. Reichhold Chems., Inc., 988 F.2d 1564,
1571–72 (11th Cir. 1993) (“This court has interpreted the causal link requirement [for retaliation
claims] broadly; a plaintiff merely has to prove that the protected activity and the negative
employment action are not completely unrelated.”) (citing Simmons); Olmsted v. Taco Bell Corp.,
141 F.3d 1457, 1460 (11th Cir. 1998) (same) (citing Reichhold); Goldsmith v. Bagby Elevator Co.,
513 F.3d 1261, 1277–78 (11th Cir. 2008) (same) (citing the previous three cases); Chapter 7 Trustee
v. Gate Gourmet, Inc., 683 F.3d 1249, 1260 (11th Cir. 2012) (same) (citing Goldsmith and Olmsted).
37

Green cannot establish a prima facie retaliation claim based on her “removal” from
the Team Leader position. As discussed above, Green was never promoted to Team Leader,
and thus never “removed” from the position of Team Leader when Kendrick replaced Powers
as Team Leader for the first shift in July 2011. Green temporarily performed some Team
Leader duties until Powers could be replaced. The “removal” of a promotion one never
received does not constitute an adverse employment action for purposes of Green’s
retaliation claim.
Green next claims that she was retaliated against by “being watched,” having her work
“scrutinized,” and having documents altered. (Doc. #78, at 65.) Green’s evidence of being
scrutinized is based on an UPLINK complaint she submitted in August 2011, two months
after Powers was terminated and after the filing of her EEOC charge on June 21, 2011, in
which she stated a supervisor was watching her and a co-worker, Patrick Moore, and was
criticizing their performance. (Doc. #60-10, at 36.) Notes from MOBIS’s investigation
reveal the incident to be nothing more than ordinary workplace conflict. (Doc. #60-11, at
39–42.) Further, to the extent there were any, the altered documents resulted in no discipline
for Green. Green also has no evidence, nor does she assert, that the people altering the
documents were aware of her complaints about Powers’s sexual harassment. Green has been
able to produce only a Power Rinse Check Sheet with Patrick Moore’s name on it rather than
hers. None of these incidents are sufficiently adverse to prevent a reasonable employee from
opposing unlawful discrimination, and, therefore, Green fails to make a prima facie case of
retaliation. See Burlington, 548 U.S. at 68 (“An employee’s decision to report discriminatory
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behavior cannot immunize that employee from those petty slights or minor annoyances that
often take place at work and that all employees experience.”).
Green’s principal retaliation claim concerns her allegation that she did not submit the
falsified doctor’s notes that served as the basis for termination, but that MOBIS’s FMLA
Coordinator received the excuses from “an unknown source” who presumably “wanted
Green fired” because “Green was causing too much trouble.” (Doc. #78, at 66.) It is
undisputed that MOBIS had in its possession copies of doctor’s notes for appointments with
Green’s father’s physicians for June 21–22, 2011, and October 17–18, 2011. It is undisputed
that Green was not with her father at the doctor on those days. It is evident from viewing the
doctor’s notes in question that a reasonable person would believe the October notes were
identical copies of the June notes with only the dates having been changed. This is how it
appeared to Ashley Brooks, MOBIS’s FMLA coordinator, who then verified that Green was
not at the doctor with her father on those dates and reported the results of her investigation
to Bennett. Brooks had no knowledge of Green’s complaints of sexual harassment, and
therefore could not have been motivated by a desire to retaliate against Green. (Doc. #61-5,
at ¶ 20.) Moreover, it is undisputed that, if Green did submit falsified doctor’s notes to
MOBIS, MOBIS’s termination of Green would have been justified and made on the basis of
non-retaliatory reasons.
Green claims that she did not submit either the June 2011 or the October 2011 notes
to MOBIS, that she does not know how MOBIS came to possess the notes, and she suggests
that they were fabricated by MOBIS to serve as a pretext for firing her. Green thus asks the
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Court to ignore the obvious conclusion and find a triable issue of fact on whether MOBIS
fabricated doctor’s notes to retaliate against Green four months after she complained of
sexual harassment and four months after Powers was terminated. While it is true that a court
may not make credibility determinations at the summary judgment stage and must draw all
inferences in favor of the non-moving party, the Court does not believe that the summary
judgment standard so dulls common sense as to require it to ignore the obvious.
While the Court makes no judgment about Green’s credibility, the undisputed
evidence establishes that MOBIS received what it reasonably and honestly believed to be
forged doctor’s notes from Green and terminated her accordingly. See E.E.O.C. v. Total Sys.
Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000) (holding that employer’s good faith belief
that employee had lied in an internal investigation constituted a legitimate non-retaliatory
reason for terminating employee regardless of whether employee had actually engaged in
misconduct). Green would have the Court believe that MOBIS acquired an official doctor’s
referral note from her father’s physician, filled it out for June 21–22, 2011 and placed it in
Green’s file on June 29, 2011,13 then waited four months after Green’s complaint of sexual
harassment to retaliate against her by forging the October 17–18, 2011 doctor’s referral note
as a pretext to terminate her. Green has absolutely no evidence for this conspiracy theory,
and mere speculation is not sufficient to overcome summary judgment. See Josendis v. Wall
to Wall Residence Repairs, Inc., 662 F.3d 1292, 1318 (11th Cir. 2011) (stating that

13

The June note was stamped “Received June 29, 2011” by Brooks. (Doc. #61-5, at 21.)
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“‘evidence’ consisting of one speculative inference heaped upon another” was “entirely
insufficient” to overcome summary judgment); Cordoba v. Dillard’s, Inc., 419 F.3d 1169,
1181 (11th Cir. 2005) (“Speculation does not create a genuine issue of fact; instead, it creates
a false issue, the demolition of which is a primary goal of summary judgment.”) (quoting
Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931–32 (7th Cir. 1995)). Accordingly, the
undisputed evidence shows that MOBIS terminated Green for a non-retaliatory reason,
namely, its good faith belief that she submitted falsified doctor’s notes.
Finally, Green alleges that MOBIS retaliated against her by informing Acre Mortgage
that she was no longer employed, which resulted in the denial of her mortgage. As alleged
in the Amended Complaint, Green claims MOBIS initiated contact with Acre for the purpose
of retaliating against her by preventing her from getting a mortgage. (Doc. #42, at ¶ 65.) But
the facts prove otherwise. Acre initiated contact with MOBIS on October 24, 2011, when
it submitted a Request for Verification of Employment to MOBIS, which MOBIS employee
Monique Coleman completed and returned to Acre. The form MOBIS sent to Acre
accurately reflected that Green was employed at the time and her rate of hourly pay. On
January 20, 2012, after Green was initially denied a mortgage with Acre, Acre sent a second
Request for Verification of Employment to MOBIS. Coleman again completed the form and
returned it to Acre. The form accurately reflected that Green was no longer employed with
MOBIS. Since the verification form reflected that Green was unemployed, Acre apparently
denied her a mortgage a second time. In sum, MOBIS responded truthfully to Acre’s
requests for information, which is not an adverse employment action.
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Since her initial theory of retaliation proved to be false, Green now argues that
Monique Coleman failed to follow company policy on outside requests for financial
information. (Doc. #78, at 24–25.) This is an improper attempt by Green to amend her
complaint at the summary judgment stage. A non-moving party plaintiff may not raise a new
legal claim for the first time in response to the opposing party’s summary judgment motion.
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004). Even if the
Court were to consider Green’s argument, Green fails to establish causation under the Nassar
standard because Monique Coleman was not even aware of Green’s opposition to sexual
harassment and, therefore, could not have been motivated to retaliate against Green by her
protected activity. (Doc. #61-11, at ¶ 7.) As a result, Green has failed to create any triable
issue of fact on her retaliation claim, and summary judgment is GRANTED in favor of
MOBIS on Green’s Title VII retaliation claims in Count 3 of her Amended Complaint.
4.

Negligent and Wanton Supervision

Green asserts a state law claim for negligent supervision against Mobis (Count 4)
based on MOBIS’s failure to prevent Powers’s sexual harassment. (Doc. #42, at ¶¶ 70–74.)
An employer is liable for negligent supervision if the employer has actual or constructive
notice of his employee’s incompetency. Mardis v. Robbins Tire & Rubber Co., 669 So. 2d
885, 889 (Ala. 1995). A plaintiff must show that the employer would have discovered the
employee’s incompetency through the exercise of proper diligence. Id. Wanton supervision
requires the employer to consciously disregard a known risk that an employee is performing
a tortious action. Big B, Inc. v. Cottingham, 634 So. 2d 999, 1004 (Ala. 1993). In this case,
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Green alleges MOBIS failed to adequately prevent Powers’s sexual harassment, but the Court
is left to guess in what way MOBIS negligently or wantonly failed to prevent sexual
harassment.
There is no evidence that MOBIS was negligent, much less wanton, in failing to
prevent or correct Powers’s acts of alleged assault and battery, invasion of privacy, and
intentional infliction of emotional distress. MOBIS promulgated an effective sexual
harassment policy and acted promptly to correct the harassment once it discovered Green’s
anonymous complaint. There is no evidence that MOBIS could have discovered Powers
would sexually harass employees through the exercise of due diligence. Therefore, summary
judgment is GRANTED in favor of MOBIS on Green’s claim of negligent and wanton
supervision/hiring/training in Count 4 of the Amended Complaint.
5.

Invasion of Privacy, Assault and Battery, Intentional Infliction of
Emotional Distress

Green has asserted tort claims for invasion of privacy (Count 5), assault and battery
(Count 6), and intentional infliction of emotional distress (Count 7) against both Powers and
MOBIS. Powers has not moved for summary judgment. An employer is liable for the
intentional torts of an employee only if (1) the employee’s wrongful acts were committed in
the line and scope of employment; (2) the acts were committed in furtherance of the business
of the employer; or (3) the employer participated in, authorized, or ratified the wrongful acts.
Mardis v. Robbins Tire & Rubber Co., 669 So. 2d 885, 889 (Ala. 1995). Green has presented
no evidence at all that MOBIS is responsible for Powers’s intentional torts. Powers’s

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conduct was not committed in the line and scope of his employment because sexually
harassing behavior of this nature is “entirely personal in nature and not within his assigned
duties.” Ex parte Atmore Cmty. Hosp., 719 So. 2d 1190, 1194 (Ala. 1998). Powers’s
conduct was not in furtherance of MOBIS’s business since sexual harassment is “aimed
solely at satisfying the [employee’s] own lustful desires” rather than any goal of the
employer. Id. Nor is there any evidence MOBIS participated in or ratified Powers’s
conduct.

Rather, MOBIS terminated Powers after investigating Green’s allegations.

Therefore, MOBIS is not liable for the intentional torts of Powers, and summary judgment
is GRANTED in favor of MOBIS on Green’s state claims for invasion of privacy, assault and
battery, and intentional infliction of emotional distress in Counts 5–7 of the Amended
Complaint.
6.

Family and Medical Leave Act

Green asserts interference and retaliation claims against MOBIS under the Family and
Medical Leave Act (“FMLA”) in Count 9 of her Amended Complaint. Green’s interference
claim is based on MOBIS’s supposed “scrutiny” of Green’s doctor’s excuses after Green had
used all of her paid leave. (Doc. #78, at 82.) However, the undisputed evidence shows that
MOBIS’s policy is to verify an employee’s absence with the doctor when the employee
provides a copy of a doctor’s note rather than an original. MOBIS approved Green for
FMLA leave and applied the same verification procedure to her doctor’s excuses as it does
to any employee. MOBIS’s termination of Green was the result of its good faith belief that
she provided forged doctor’s notes to it and did not interfere with legitimate use of FMLA
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leave. Green’s FMLA retaliation claim is based on the exact same facts as her Title VII
retaliation claim. For the same reasons as her Title VII retaliation claim, Green has failed
to raise a genuine dispute of fact that MOBIS retaliated against her for engaging in statutorily
protected activity under the FMLA. Therefore, summary judgment is GRANTED in favor
of MOBIS on Green’s FMLA claims in Count 9 of the Amended Complaint.
7.

State law claims against Powers

Green asserts state law claims against Powers for invasion of privacy (Count 5),
assault and battery (Count 6), and intentional infliction of emotional distress (Count 7).
(Doc. #42.) The Court has supplemental subject matter jurisdiction over these claims
pursuant to 28 U.S.C. § 1367. Section 1367(c)(3) provides that a “district court may decline
to exercise supplemental jurisdiction over a claim if . . . the district court has dismissed all
claims over which it has original jurisdiction.” Because the federal claims over which this
Court had original jurisdiction have been resolved against Green, the Court declines to
exercise its supplemental jurisdiction over the state law claims against Powers and, instead,
dismisses them without prejudice. See 28 U.S.C. § 1367(c)(3); Un. Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726–27 (1966).

This dismissal should not work to Green’s

disadvantage if she chooses to bring these claims in State court because the statute of
limitations for this claim is tolled during the pendency of this action. See 28 U.S.C. §
1367(d).
V. CONCLUSION
Based on the foregoing, it is hereby ORDERED as follows:
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1.

Green’s Motion to Strike the Declaration of Kevin Green (Doc. #78) is

GRANTED.
2.

Green’s Motion to Strike Defendant’s Supplemental Evidentiary Submission

(Doc. #92) is DENIED.
3.

MOBIS’s Motion for Summary Judgment (Doc. #58) is GRANTED as to all

of Green’s claims, and Green’s Amended Complaint is DISMISSED WITH PREJUDICE.
4.

The state law claims against Powers (Counts 5–7 of the Amended Complaint)

are DISMISSED WITHOUT PREJUDICE.
5.

The trial of this case is CANCELLED.

A separate final judgment will be entered in accordance with this Memorandum
Opinion and Order.
DONE this the 5th day of February, 2014.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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