Redmon v. Massey Auto (CONSENT)

Filing 41

MEMORANDUM OPINION AND ORDER GRANTING defendant's 27 MOTION for Summary Judgment as to Counts Three, Four and Five of the Complaint ( plaintiff's state law defamation and outrage claims) and DENIED as to Counts One and Two (plaintiff's ADEA and AADEA claims). Signed by Honorable Judge Susan Russ Walker on 9/29/14. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JOSEPH REDMON,
Plaintiff,
v.
MASSEY AUTO,
Defendant.

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CIVIL ACTION NO. 2:13CV313-SRW

MEMORANDUM OPINION and ORDER
Plaintiff Joseph Redmon brings this action against his former employer, Massey Auto
(“Massey”).1 Plaintiff claims that the defendant terminated his employment because of his
age, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621
et seq., and the Alabama Age Discrimination in Employment Act (“AADEA), Ala. Code
§ 25-1-20, et seq. (Complaint, Counts One and Two). He also asserts state law claims of
defamation (id., Counts Three and Four) and intentional infliction of emotional distress (id.,
Count Five). This action is presently before the court on defendant’s motion for summary
judgment. (Doc. # 27). Upon consideration of the motion, the court concludes that it is due
to be granted in part and denied in part.
SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment if it “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.

1

Defendant answers as “Massey Automotive, Inc.,” representing that it is identified
incorrectly in the complaint. (Doc. # 8).

Civ. P. 56(a). For summary judgment purposes, an issue of fact is “material” if, under the
substantive law governing the claim, its presence or absence might affect the outcome of the
suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant fails to satisfy
its initial burden, the motion for summary judgment will be denied. Kernel Records Oy v.
Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012), cert. den., 133 S.Ct. 1810 (2013). If the
movant adequately supports its motion, the burden shifts to the opposing party to establish
– “by producing affidavits or other relevant and admissible evidence beyond the pleadings”
– specific facts raising a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs,
Inc., 662 F.3d 1292, 1315 (11th Cir. 2011); Dietz v. Smithkline Beecham Corp., 598 F.3d
812, 815 (11th Cir. 2010); Fed. R. Civ. P. 56(c)(1)(A). “All affidavits [and declarations]
must be based on personal knowledge and must set forth facts that would be admissible under
the Federal Rules of Evidence[.]” Josendis, 662 F.3d at 1315; Fed. R. Civ. P. 56(c)(4). The
court views the evidence and all reasonable factual inferences in the light most favorable to
the nonmovant. Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d
1312, 1316 (11th Cir. 2012). However, “‘[i]f no reasonable jury could return a verdict in
favor of the nonmoving party, there is no genuine issue of material fact and summary
judgment will be granted.’” Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir.
2013)(citation omitted).

2

DISCUSSION2
Request for Rule 56(d) Relief
Defendant filed its motion for summary judgment on November 20, 2013 (Doc. # 27);
plaintiff’s response was due on December 11, 2013 (Doc. ## 18, 30). Two days before his
response deadline, plaintiff sought an extension of time, citing a death in counsel’s family;
the court allowed plaintiff until January 6, 2014, to respond to the motion for summary
judgment. (Doc. ## 31, 32). On that date, plaintiff filed an “objection” to defendant’s motion,
in which plaintiff represented that due to his incomplete discovery, his own health issues, and
deaths in his attorney’s family, he was unable to “present essential facts to justify [his]
opposition to the motion.” (Doc. ## 33, 33-1). Plaintiff indicated in his objection that
“discovery is not complete and is scheduled to be completed by April 4, 2014.” (Doc. # 33,
¶ 3). In an order entered the following day, the court explained that plaintiff’s affidavit and
motion were “not sufficient to warrant an extension pursuant to Rule 56(d).” (Doc. # 34, p.
2)(citing Nawab v. Unifund CCR Partners, 2013 WL 6823109, *2 (11th Cir. Dec. 27,

2

As it is required to do, the court has viewed the evidence presented on the motion for
summary judgment in the light most favorable to the plaintiff. Welch v. Celotex Corp., 951 F.2d
1235, 1237 (11th Cir. 1992). Additionally, the court considers any evidentiary objection that is not
raised expressly to have been waived. Fed. R. Civ. P. 56(c)(2), (e)(2); see also Munoz v.
International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of
U.S. and Canada, 563 F.2d 205, 214 (5th Cir. 1977)(“Inadmissible material that is considered by a
district court without challenge may support a summary judgment. Here there was no timely
objection and it is deemed waived.”); Auto Drive-Away Co. of Hialeah, Inc. v. I.C.C., 360 F.2d 446,
448 (5th Cir. 1966)(objection to admissibility of summary judgment exhibits raised for the first time
on appeal came “too late,” as the party failed to object to the introduction or use of the evidence
before the district court).
3

2013)).3 Thus, to the extent that plaintiff’s “objection” sought relief pursuant to Rule 56(d),
the court denied the motion. (Doc. # 32). However, it construed plaintiff’s objection to seek
an additional extension of time due to plaintiff’s counsel’s extenuating circumstances, and
allowed plaintiff an additional seven weeks, until February 25, 2014, to respond to the
motion. (Id.). The court also noted that the discovery deadline was February 11, 2014. (Id.,
p. 1 n. 1)(citing Doc. # 17, scheduling order).
On February 25, 2014, plaintiff filed a response to the motion for summary judgment.
(Doc. # 35). Within this response, plaintiff “objects” to defendant’s motion for summary
judgment because, inter alia, he has “demonstrated by affidavit that due to his incomplete
discovery he cannot present essential facts to justify his opposition.” (Id. at p. 1 ¶ 4). He
asserts, as he did in his previous objection, that “discovery is not complete and is scheduled
to be completed by April 4, 2014.” (Id. at p. 1 ¶ 3). Plaintiff attaches no new affidavit or
declaration to support his renewed request for Rule 56(d) relief, and – as the court pointed
out in its January 7, 2014, order – discovery closed in this matter on February 11, 2014, two
weeks before the deadline for plaintiff’s response. (See Doc. # 17). To be entitled to Rule
56(d) relief, the movant “‘must specifically demonstrate how postponement of a ruling on
the [summary judgment] motion will enable them, by discovery or other means, to rebut the
movant’s showing of the absence of a genuine issue of fact.’” Nawab, 553 F. App’x. 856,
859 (11th Cir. 2013)(quoting Fla. Power & Light Co. v. Allis Chalmers Corp., 893 F.2d

3

While plaintiff designates his statement as an affidavit (see Doc. # 33-1, p. 1), it is actually
a declaration under penalty of perjury (id., p. 2).
4

1313, 1316 (11th Cir. 1990))(alteration in Nawab). Plaintiff’s present objection provides no
grounds justifying Rule 56(d) relief; accordingly, the court will proceed to the merits of
defendant’s motion for summary judgment.
Defamation Claims
Plaintiff asserts two counts of defamation against the defendant, pursuant to Alabama
law. (Complaint, Counts Three and Four). Plaintiff alleges that “Defendant made false and
defammatory [sic] statements about Mr. Redmon to other employees of Massey Auto and to
others.” (Doc. # 1, ¶ 59). Plaintiff does not allege the precise nature of the allegedly
defamatory statements or the circumstances in which they were made, but he indicates that
the statements were “about Mr. Redmon allegedly sexually harassing a female employee[.]”
(Id., ¶ 58).
Communications to Defendant’s Employees
“To establish a prima facie case of defamation, a plaintiff must show: [1] that the
defendant was at least negligent [2] in publishing [3] a false and 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).” Federal Credit, Inc. v. Fuller, 72 So.3d 5, 9-10 (Ala. 2011)(emphasis
and brackets in original; citations and internal quotation marks omitted). Regarding
plaintiff’s allegations that defendant made defamatory statements about plaintiff to its other
employees, defendant contends that plaintiff cannot establish the “publication” element of
5

his claim, because “any and all statements made by the dealership, to and among the
employees, in conducting its investigation into the complaints received regarding the Plaintiff
do not constitute publication[.]” (Defendant’s brief, Doc. # 28, p. 20).
In Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085 (Ala. 1988), the Alabama
Supreme Court discussed its McDaniel/Burney4 “no publication” rule – i.e., that
communications between corporate managers or between fellow corporate employees
concerning the corporation’s business do not constitute “publication” for purposes of a
defamation claim – and concluded that the defendant corporation’s president’s allegedly
defamatory communications to employees during the course of investigating a theft from the
corporation fell within the rule. Id. at 1093. The Alabama Supreme Court found it
“irrelevant” that Brothers, the corporate officer, had communicated the plaintiff’s
involvement in the theft to Taylor, a non-managerial employee; the court stated that, “[a]s
long as a communication to a non-managerial employee falls within the proper scope of that
employee’s knowledge or duties, the McDaniel/Burney rule applies to non-managerial
employees as well as to managerial employees.” Id. The court reasoned:
Taylor worked with Nelson at the grain elevator, and it is reasonable to
conclude that he might have had important information to disclose to Brothers
as to the cause of the grain shortage. By taking part in the investigation, Taylor
acted within the scope of his employment and within the line of his duties as
a Lapeyrouse employee. Likewise, Brothers and Hall acted within the scope
of their employment and within the line of their duties as corporate officers
investigating a theft. Thus, Brothers’s alleged defamatory communications to
4

See McDaniel v. Crescent Motors, Inc., 31 So. 2d 343 (Ala. 1947); Burney v. Southern Ry.
Co., 165 So.2d 726 (Ala. 1964).
6

Hall and Taylor were not communications to third persons but to agents of
Lapeyrouse and, therefore, were not publications. Lapeyrouse cannot be held
liable solely on the basis of its alleged defamatory communications to itself.
Id. at 1094. In Burks v. Pickwick Hotel, 607 So.2d 187 (Ala. 1992), the court found the “no
publication” rule to apply even in the absence of evidence that the defendant employer was
a corporation. Id. at 189-90. The court upheld the entry of summary judgment in favor of
the defendants, observing that the plaintiff had failed to present evidence to rebut the
defendant hotel’s showing that the allegedly defamatory communications were made only
to its employees and “only to the extent necessary to investigate [the plaintiff’s] employment
behavior.” Id. at 190; see also Nipper v. Variety Wholesalers, Inc., 638 So.2d 778, 781 (Ala.
1994)(finding no publication in loss prevention manager’s questioning of the plaintiff’s coemployees about her activities at the store, in the course of investigating hotline complaints
and inventory loss).
Defendant’s “no publication” argument is directed to its June 21, 2012, investigation
into a charge that plaintiff had sexually harassed a former employee. (See Doc. # 28, p. 23).
Defendant cites plaintiff’s admission that “as a part of [defendant’s] investigation of [the
EEOC charge alleging sexual harassment by plaintiff filed by former employee Rebecca
Nelson], Massey Automotive caused nine (9) employees, seven (7) of which were females,
to be interviewed, on June 21, 2012.” (Defendant’s brief, Doc. # 28, p. 23 (citing defendant’s
Exhibit B, Admission No. 12 and Exhibits E and G (transcripts of sworn responses of
Cornelia Messick and Diane Bush to interview questions posed to them by attorney John

7

Martin Galese))). Plaintiff appears to agree, as to defamatory statements allegedly made to
defendant’s employees, that the statements occurred in the context of the employee
interviews on June 21, 2012. In his responsive brief, plaintiff argues that “the ‘investigation’
conducted by the Defendant needlessly included discussing the conduct of Mr. Redmon with
other employees instead of simply acquiring information about him, constituting an attack
on his character by imputed wrongdoing[,]” and he cites the sworn statements made by Diane
Bush and Cornelia Messick and filed by the defendant in support of its motion for summary
judgment. (See Plaintiff’s response, Doc. # 35, pp. 7-8)(citing and discussing Defendant’s
Exhibits E and G). Galese conducted the employee interviews plaintiff cites on June 21,
2012 – the day on which defendant terminated plaintiff’s employment. (See Defendant’s
Exhibits E, G (transcripts of sworn interviews conducted by Galese at Massey Automotive)
and Exhibit J (plaintiff’s EEOC charge)).
Plaintiff also has implied that his claim arises from defendant’s defamatory statements
to its employees after plaintiff’s termination. (See Defendant’s Exhibit A, Plaintiff’s
supplemental response to Interrogatory # 6 (identifying statements“that plaintiff was
terminated for sexual harassment” to be the communications at issue)(emphasis added);
Plaintiff’s brief, Doc. # 35, at p. 9 (after indicating that defendant “communicated the
defamatory statements to at least 8 female employees by soliciting affidavits from them[,]”
arguing that “an employee who is asked to make a statement about a terminated employee
feels intimidated and obligated to support their employer for fear that they will also be
terminated”)(emphasis added). Plaintiff’s concluding argument could be understood to refer
8

either to Galese’s statements during or in connection with the interviews of June 21, 2012,
or to other unspecified communications made to solicit affidavits from employees after
plaintiff filed his own charge of discrimination. (See Doc. # 35 at p. 11 (arguing that “the
Defendant’s defamatory communications were made with actual malice to shift the
responsibility for any charges filed against it as a corporation onto Mr. Redmon” and that
defendant “defamed Mr. Redmon by soliciting false statements from employees to support
the termination and avoid responsibility for their actions”).
Thus, it is not clear to the court from the pleadings, the evidence of record, or
plaintiff’s brief whether plaintiff’s defamation claim – to the extent that it rests on
communications to defendant’s other employees – arises from statements Galese made to
employees during or in connection with the interviews he conducted on the day of plaintiff’s
termination, or from other statements defendant made to its employees to solicit affidavits
from them in support of its response to plaintiff’s charge of discrimination. However, the
court concludes, in either case, that the defendant has satisfied its initial burden on the
present motion of informing the court of the basis for its motion (i.e., that any statements it
made to its own employees in investigating allegations that it had engaged in unlawful
discrimination do not constitute a “publication,” under Alabama law, a necessary element of
plaintiff’s defamation claim) and identifying those portions of the record that defendant
contends demonstrate the absence of a genuine issue of material fact (in this case, by filing
and pointing to plaintiff’s admissions and interrogatory responses, the sworn statements of
Bush and Messick, and Nelson’s EEOC charge). See U.S. v. Four Parcels of Real Property,
9

941 F.2d 1428, 1437-38 and 1438 n. 19 (11th Cir. 1991)(where the non-movant will bear the
burden of proof at trial, the moving party may meet its initial burden on summary judgment
either with “affirmative evidence demonstrating that the nonmoving party will be unable to
prove its case at trial” or by pointing out to the court, by reference to specific portions of the
record, “‘that there is an absence of evidence to support the nonmoving party’s
case’”)(citations omitted); Defendant’s brief, Doc. # 28, at pp. 19-23 and Exhibits A, B, E,
F, and G). Thus, the burden on the present motion shifts to the plaintiff to direct the court
to evidence of record demonstrating the existence of a genuine issue of fact regarding
whether defendant made defamatory statements to its employees in specific circumstances
that fall outside of the “no publication” rule as applied by Alabama Supreme Court. Plaintiff
has not satisfied his burden on this issue.
The two interview transcripts which plaintiff cites do not permit a reasonable
inference that Galese acted outside the scope of his agency with regard to any of his
communications to the employees, as would be necessary to find that those communications
are beyond the reach of the “no publication” rule. (See Defendant’s Exhibits E and G
(interview transcripts); Defendant’s Exhibit B at ## 10-12 (plaintiff’s admissions that former
employee Rebecca Nelson filed a charge of discrimination with the EEOC on May 22, 2012,
alleging that plaintiff had sexually harassed her, that Massey Automotive investigated the
allegations contained in Nelson’s charge, and that “as a part of its investigation of that
Charge,” Massey caused nine of its employees to be interviewed on June 21, 2012);
Defendant’s Exhibit F (Nelson’s EEOC charge); see also Brackin v. Trimmier Law Firm, 897
10

So.2d 207, 221-23 (Ala. 2004)(the Alabama Credit Union Administration (“ACUA”) had
directed a credit union to engage an outside firm to investigate its practices; the Alabama
Supreme Court concluded that the responses of credit union employees to questions posed
to them by an outside auditor who was acting within the scope of her agency for the credit
union “did not amount to ‘publications’ to a third party for purposes of establishing a
defamation claim”; further finding no “publication” in the outside auditor’s communication
to the senior examiner of the ACUA regarding what the auditor had learned about plaintiff’s
activities); Watters v. Louisiana Pacific Corporation, 156 F. App’x. 177, 179 (11th Cir.
2005)(under Alabama law, “communications made to employees in the course of
investigating the plaintiff’s employment behavior do not constitute third-party publication
for defamation purposes.”). The only evidence plaintiff has filed in this action is his January
3, 2014 declaration (Doc. # 33-1), which he does not cite in his response to the present
motion (see Doc. # 35).5 Defendant’s exhibits evidence no communications by defendant
to its employees – through Galese or any other individual – other than Galese’s
communications during the transcribed interviews of Bush and Messick.6 Thus, to the extent
5

The declaration does not include evidence of particular communications published to
defendant’s employees; plaintiff states only that he “requested that [the insurance attorneys who
came to the dealership to investigate the complaint of sexual harassment] interview all female
employees, but they selected three[.]” (Doc. # 33-1, ¶¶ 23-24).
6

While plaintiff cites his own deposition testimony as evidence that “Defendant
communicated the defamatory statements to at least 8 female employees by soliciting affidavits from
them” (see Doc. # 35, p. 9) he has not – as defendant points out in its reply brief (Doc. # 36, pp. 4-5)
– filed a copy of his deposition transcript. Defendant’s reply brief was filed on March 4, 2014, and,
thus, plaintiff’s counsel should have known on or around that date that she had failed to introduce
plaintiff’s deposition into the court’s record. Plaintiff has not sought leave to file it out of time.
Defendant argues that “even if [plaintiff] had [submitted his deposition to the court], it would not
11

that plaintiff’s defamation claim rests on defendant’s communications to its employees,
defendant’s motion for summary judgment is due to be granted.
Communications to “Others”
As noted above, plaintiff alleges that the defendant “made false and defammatory [sic]
statements about Mr. Redmon to other employees of Massey Auto and to others.” (Doc. # 1,
¶ 59)(emphasis added). In relation to the requirement that an actionable defamatory
communication must concern the plaintiff, plaintiff argues “it is undisputed that the
statements made to employees and possibly customers and other business associates,
concerned Mr. Redmon.” (Id. at pp. 9-10)(emphasis added). Plaintiff did not identify any
defamatory statements made to “customers and other business associates” in his response to
defendant’s interrogatory (see Defendant’s Exhibit A, Plaintiff’s response to Interrogatory
# 6), and it does not appear to the court that – merely by interjecting, by way of a single
phrase in his responsive argument addressing an unrelated element of his claim, his
speculation that defendant “possibly” made defamatory statements about him to “customers
and other business associates” – plaintiff seeks to pursue a claim based on these

save his case from summary judgment.” (Doc. # 36 at p. 4). It is unlikely that plaintiff’s deposition
testimony would provide competent evidence of any statements that defendant made to these “8
female employees.” However – even if it might – the court declines to order, sua sponte, that
plaintiff file his deposition transcript. Plaintiff’s argument – i.e., that defendant made the allegedly
defamatory communications to its employees in connection with soliciting supportive affidavits
from those employees regarding plaintiff’s termination (Doc. # 35, p. 9) – makes clear that plaintiff’s
deposition testimony would not bear upon or overcome defendant’s contention that the allegedly
defamatory communications to its employees do not, as a matter of law, constitute “publications”
giving rise to a defamation claim.
12

communications or to offer the possibility of such previously undisclosed defamatory
communications in opposition to defendant’s motion for summary judgment.7 Accordingly,
the court need not address any such “possibl[e]” defamatory communications in resolving
the present motion.
In his interrogatory response, plaintiff indicates that “Statements were made ... to the
EEOC that I was terminated for sexual harassment. This was published in the response
submitted by the dealership to the EEOC complaint filed, in emails from the attorney for the
dealership, and in the answer to the Complaint[.]” (Defendant’s Exhibit A, Plaintiff’s
response to Interrogatory # 6 (original in bold type and italics); see also Defendant’s Exhibit
K, 10/31/2012 Galese’s response to plaintiff’s EEOC charge, on behalf of Massey
Automotive, addressed to EEOC District Director8). Defendant asserts that any
communications to the EEOC or to this court by Massey Auto, its counsel, or its witnesses
regarding matters that are relevant to the proceedings are absolutely privileged under
Alabama law. (Defendant’s brief, Doc. # 28, pp. 23-25). Absolute privilege is an affirmative
defense, on which defendant bears the burden of proof. See Webster v. Byrd, 494 So. 2d 31,
32 (Ala. 1986). Thus, to satisfy its initial burden on the present motion, defendant must

7

Plaintiff does not suggest that he has ever supplemented his interrogatory response of
August 8, 2013 (Defendant’s Exhibit A) to include information about defamatory communications
to “customers and other business associates.” Thus, even if plaintiff sought to pursue a defamation
claim based on these communications, evidence of any such communications would be subject to
the exclusion sanction of Rule 37(c)(1). See Fed. R. Civ. P. 37(c)(1).
8

Plaintiff raises no objection to the authenticity of this exhibit, which includes the
statements on which plaintiff’s defamation claim rests.
13

produce evidence demonstrating the absence of a genuine issue of material fact as to its
defense – i.e., it must show that no reasonable jury could find against it. Four Parcels of Real
Property, 941 F.2d at 1438. If it does so, it is entitled to prevail on its motion for summary
judgment as to plaintiff’s defamation claims, unless the plaintiff responds with “‘significant,
probative evidence demonstrating the existence of a triable issue of fact.” Id. (citation
omitted).
Alabama recognizes an absolute privilege for communications made in connection
with and relevant to a judicial proceeding. O’Barr v. Feist, 296 So.2d 152 (Ala. 1974). The
absolute privilege extends to quasi-judicial proceedings (Webster, 494 So.2d at 34), and to
relevant communications preliminary to a proposed judicial proceeding (Walker v. Majors,
496 So.2d 726 (Ala. 1986)).9 Defendant has satisfied its summary judgment burden as to its
defense of absolute privilege. In his interrogatory response, plaintiff identifies the defamatory
statements at issue – i.e., “that [he] was terminated for sexual harassment” – and the
recipients of the communication – i.e., “other employees” and, as is relevant to defendant’s
claim of absolute privilege in the present motion, “the EEOC.” (Defendant’s Exhibit A, #

9

In Walker, the Alabama Supreme Court adopted the standard proposed in the Restatement
(Second) of Torts, as follows:
A party to a private litigation ... is absolutely privileged to publish defamatory matter
concerning another in communications preliminary to a proposed judicial
proceeding, or in the institution of or during the course and as a part of, a judicial
proceeding in which he participates, if the matter has some relation to the
proceeding.
496 So.2d at 729 (quoting Restatement (Second) of Torts, § 587 (1977); emphases omitted).
14

6).10 Plaintiff further asserts publication of the defamatory statements “in the response
submitted by the dealership to the EEOC complaint filed, in emails from the attorney for the
dealership, and in the answer to the Complaint.” Id. Plaintiff does not identify the individual
recipients of defendant’s attorney’s e-mail communications; however, according to his
interrogatory response, the attorney sent such communications to “other employees” (again,
not a publication) and/or to “the EEOC.” Id.
In his EEOC charge, plaintiff alleges that he was “terminated ... under the pretext of
not following policy” and claims that defendant discriminated against him because of his age.
(Defendant’s Exhibit J). In the present action, plaintiff asserts a claim of age discrimination
pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.
(Complaint, Doc. # 1, Count One), and alleges that “he has fulfilled all conditions precedent
to the institution of this action under the ADEA ... by filing this charge of discrimination with
180 days of the occurrence of the last discriminatory act and filing this Complaint within 90
days of the receipt of the right to sue letter from the Equal Employment Opportunity
Commission (EEOC) attached as Exhibit 1” (id. at pp. 1-2; see also Doc. 1-1 (EEOC notice).
As plaintiff recognizes, “[t]he ADEA requires that an individual exhaust available
administrative remedies by filing a charge of unlawful discrimination with the EEOC before

10

In its reply brief, defendant suggests that it raised absolute privilege in its initial brief –
in addition to lack of publication – as to the allegedly defamatory statements made to its employees.
(Doc. # 36, pp. 8-9). The court cannot agree. In its initial brief, defendant argues only lack of
publication as to communications to its employees (Doc. # 28, pp. 20-23) and absolute privilege as
to statements made to the EEOC and in the course of the present litigation (id., pp. 23-25). Thus, the
court does not address absolute privilege in relation to statements made to defendant’s employees.
15

filing a lawsuit.” Bost v. Federal Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004); see
29 U.S.C. § 626(d)(1)(“No civil action may be commenced by an individual under this
section until 60 days after a charge alleging unlawful discrimination has been filed with the
Equal Employment Opportunity Commission.”). The court has found no Alabama Supreme
Court decision addressing absolute privilege in the context of statements made in connection
with administrative proceedings before the EEOC. However, applying Alabama precedent
to the present context, the court concludes that Alabama’s absolute privilege extends to
statements that were made in connection with, and were relevant to, the administrative
proceedings before the EEOC arising from plaintiff’s charge of employment discrimination
– both because such proceedings were “quasi-judicial,” as contemplated by the Alabama
Supreme Court in Webster, and because initiating such proceedings was a prerequisite to
plaintiff’s assertion of his ADEA claim in this court and, thus, any defensive statements
made in connection with the EEOC’s investigation of plaintiff’s charge were necessarily
“preliminary” to the present judicial proceeding. even more so than the preliminary statement
found to be absolutely privileged in Walker. See Hatfield v. Bio-Medical Applications of
Alabama, Inc., 2012 WL 4478769 (M.D. Ala. Sept. 4, 2012), Report and Recommendation
adopted, 2012 WL 4471608 (M.D. Ala. Sept. 26, 2012)(holding that absolute privilege
applied to statements in an employer’s EEOC position statement because, “under Alabama
law, pertinent statements made in the course of legal proceedings are absolutely privileged
and cannot form the basis of a defamation claim.”)(citing O’Barr, 292 Ala. at 445-46); cf.
Surrency v. Harbison, 489 So.2d 1097 (Ala. 1986)(absolute privilege applied to allegedly
16

defamatory statements “made at a management-union grievance adjustment proceeding
conducted pursuant to a collective bargaining agreement”).11
It is beyond question that statements from defendant or its agents that plaintiff “was
terminated for sexual harassment,” published “to the EEOC” in defendant’s response to the
charge and/or in e-mails from its attorney, were made in the course of and were relevant to
the EEOC administrative proceedings initiated upon plaintiff’s charge of age discrimination.
Thus, defendant’s communications to the EEOC are absolutely privileged. See Walker, 496
So.2d at 730 (“[W]hether the communication was privileged or not by reason of its character,
or the occasion on which it was made, is a question of law to be decided by the court. ...
[T]he issue of the relevancy of the communication is a matter for the determination of the
court, and the adjudicated cases have established a liberal view in the interpretation of the
language used, and all doubts are resolved in favor of its relevancy or pertinence.”)(citations

11

Federal district courts in other states also have found absolute privilege, under applicable
state law, to extend to communications relating to EEOC proceedings. See, e.g., Shabazz v. PYA
Monarch, LLC, 271 F. Supp.2d 797, 803-05 (E.D.Va. 2003)(concluding, in view of the EEOC’s
statutory responsibilities, the nature of the proceedings, the EEOC’s subpoena power, and its power
to file a lawsuit at the conclusion of its investigation, and the requirement to exhaust administrative
remedies before the EEOC prior to filing an employment discrimination lawsuit, that such
proceedings are “quasi-judicial” so as to implicate the absolute privilege accorded by Virginia law);
Long v. Welch & Rushe, Inc., __ F.Supp.2d __, 2014 WL 2963975, *8 (D. Md. Jun. 30,
2014)(applying Maryland law and concluding that “[p]roceedings before the EEOC give rise to an
absolute privilege”); Sparto v. Hearts for Hospice, LLC, 2014 WL 559536, *2 (D. Utah Feb. 13,
2014)(under Utah law, EEOC proceedings are “‘judicial proceedings’ for purposes of applying
absolute privilege’”); Foster v. Select Medical Corporation, 2013 WL 764780, *7 (M.D. Fla. Feb.
28, 2013)(absolute privilege applies to EEOC investigations under Florida law); Collins v. Onyx
Waste Services of North America, LLC, 2005 WL 3478347, *6 (M.D. Ga. Dec. 20, 2005)(finding
EEOC proceedings to be quasi-judicial and Georgia’s absolute privilege to apply to such
proceedings).
17

omitted).12
In his interrogatory response, plaintiff asserts that defendant published the allegedly
defamatory statement “that [he] was terminated for sexual harassment” in its “answer to the
Complaint.” While this response could refer to publication within the answer filed in this
court (Doc. # 8), it is not clear that this is what plaintiff meant in his interrogatory response,
since plaintiff refers to the EEOC charge as a “complaint[.]” (See Defendant’s Exhibit A,
# 6)(“This was published in the response submitted by the dealership to the EEOC complaint
filed in emails from the attorney for the dealership, and in the answer to the
Complaint.”)(original in italics and bold type). Also, there is no amended complaint in this
action; therefore, simply as a matter of chronology, statements published in defendant’s
answer to the complaint cannot have given rise to the defamation claim that plaintiff asserts
in his complaint. However, to the extent that plaintiff contends that he is entitled to relief for
statements made by defendant or its agent “that [he] was terminated for sexual harassment[,]”
published in the responsive pleading defendant has filed in this civil action (Doc. # 8), any
such statements fall squarely within the absolute privilege Alabama accords to statements
made in the course of judicial proceedings. See Walker, 496 So. at 730 (“In defamation
actions, the only absolutely privileged communications recognized under the law are those

12

It is difficult to ascertain from the pleadings, briefs, and evidence before the court whether
plaintiff bases his defamation claim on statements made to the EEOC during its investigation of his
own charge of age discrimination or on statements made to the EEOC in the course of its
investigation of charges by other employees that plaintiff had sexually harassed them. In either
event, statements published to the EEOC that plaintiff was terminated for sexual harassment are
relevant to the proceedings and absolutely privileged.
18

made during legislative or judicial proceedings (or, in such situations as that dealt with in
Webster v. Byrd, quasi-judicial proceedings), or contained in legislative acts of this state
which are made under authority of law.”).
Plaintiff’s response to defendant’s assertion of absolute privilege is limited to his
contention regarding “actual malice.” He argues:
Mr. Redmon further submits that the Defendant’s defamatory
communications were made with actual malice to shift the responsibility for
any charges filed against it as a corporation onto Mr. Redmon. Mr. Redmon
presented sufficient evidence to create a conflict for the jury on the question
of whether the Defendant made the communications with actual malice.
(Plaintiff’s brief, p. 11). The issue of “actual malice,” however, is immaterial to a defense
of absolute privilege; even assuming that defendant made the statements at issue with actual
malice, the statements remain absolutely privileged. See Adams v. Alabama Lime & Stone
Corporation, 142 So. 424 (Ala. 1932)(“‘In questions falling within this absolute privilege the
question of malice has no place. However malicious the intent, or however false the charge
may have been, the law, from considerations of public policy, and to secure the
unembarrassed and efficient administration of justice, denies to the defamed party any
remedy through an action for libel or slander.’”)(quoting Hastings v. Lusk, 22 Wend. (N.Y.)
410, 34 Am. Dec. 330 (1839) and observing that it “well and concisely stated” the rule
adopted in Alabama). Defendant has established affirmatively that the remaining alleged
communications to “others” – specifically, to the EEOC and to the court – are absolutely
privileged. Thus, defendant’s motion for summary judgment is due to be granted as to Counts
19

Three and Four of the complaint, plaintiff’s defamation claims.
Intentional Infliction of Emotional Distress
“The intentional infliction of emotional distress is also known as the tort of outrage.”
Ex parte Bole, 103 So.3d 40, 52 (Ala. 2012). To establish a claim of outrage, “a plaintiff
must demonstrate that the defendant’s conduct ‘(1) was intentional or reckless; (2) was
extreme and outrageous; and (3) caused emotional distress so severe that no reasonable
person could be expected to endure it.’” Potts v. Hayes, 771 So.2d 462, 465 (Ala.
2000)(citation omitted). “Extreme” conduct is “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 intolerable in a civilized society.” American Road Service Co. v. Inmon,
394 So.2d 361, 365 (Ala. 1980). In Count Five of his complaint, plaintiff claims that
defendant is liable to him for intentional infliction of emotional distress. (Doc. # 1, pp. 6-7).
He alleges that the defendant was aware of his age, and “wantoningly [sic] and knowlingly
[sic] subjected Mr. Redmon to false accusations and wrongful termination.” (Id., ¶¶ 73, 74).
Plaintiff incorporates all previous allegations of his complaint, beginning with paragraph 7
(id., ¶ 72), including his allegation within Count Three that “[t]he Defendant’s publication
and speaking about Mr. Redmon allegedly sexually harassing a female employee is evidence
of 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 intolerable in a civilized
society” (id. ¶ 58).

20

Defendant contends that it is entitled to summary judgment because the undisputed
facts “do not rise to the level of extreme and outrageous conduct on the part of the
Defendant, as required to prove the tort of outrage.” (Doc. # 28, p. 26; see id., pp. 25-29).13
In its interrogatories, defendant asked that plaintiff “state each fact upon which you base your
claim or contention that the Defendant’s conduct was ‘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 intolerable in a civilized society[.]” (Defendant’s Exhibit A,
Interrogatory # 7). Plaintiff responds only that “[t]he accusations against me are outrageous
and meant to cover up for the real reason I was terminated.” (Id.).
Plaintiff has presented no competent evidence that the specific acts of sexual
harassment alleged by Nelson and Messick did not occur.14 The May 7, 2012 disciplinary
warning filed by defendant, however, includes plaintiff’s unsworn statement that he

13

In his brief in opposition to the motion, plaintiff does not respond to defendant’s
contention regarding plaintiff’s claim of intentional infliction of emotional distress. (See Doc. # 35).
In its reply, defendant argues that, by failing to respond to its argument regarding this claim, plaintiff
“has abandoned [it] and the Defendant is entitled to a judgment, as a matter of law, on said claim[].”
(Doc. # 36, pp. 9-11). To the extent that defendant contends that this “abandonment” alone entitles
it to judgment on the claim, binding Eleventh Circuit precedent is to the contrary. Trustees of the
Central Pension Fund of the International Union of Operating Engineers and Participating
Employers v. Wolf Crane Service, Inc., 374 F.3d 1035, 1039-40 (11th Cir. 2004); see Gailes v.
Marengo County Sheriff’s Dept., 916 F.Supp.2d 1238, 1241 n.6 (S.D. Ala. 2013)(observing that
“[s]everal unpublished Eleventh Circuit decisions have deemed plaintiffs to have ‘abandoned’
claims by not responding to motions for summary judgment” but that those decisions fail to
acknowledge Wolf Crane).
14

In his declaration (Doc. # 33-1), plaintiff does not deny the specific acts of sexual
harassment alleged in Nelson’s EEOC charge, which Nelson signed under penalty of perjury
(Defendant’s Exhibit F) or in Messick’s sworn statement (Defendant’s Exhibit E).
21

“disagree[s] totally” with the employer’s description of the violation of policy presented in
the warning, i.e., “SEXUAL HARASSMENT CLAIM MADE BY SUBORDINATE
EMPLOYEE.

INAPPROPRIATE

COMMENTS

AND

TOUCHING

CLAIMS.”

(Defendant’s Exhibit D).15 Plaintiff’s sworn interrogatory response that the “accusations
against [him] are outrageous” (Defendant’s Exhibit A, #7 (emphasis added)) is conclusory.
For purposes of this motion, the court infers from plaintiff’s description of the accusations
as “outrageous” that the accusations of sexual harassment are false. However, plaintiff
admits that Nelson filed a charge of discrimination with the EEOC, that defendant
investigated the allegations in Nelson’s charge and that, as part of that investigation, several
of defendant’s employees were interviewed. (Defendant’s Exhibit B, ¶¶ 10-12).
Additionally, it is undisputed that, during the interviews on June 21, 2012, Messick reported
that plaintiff had harassed her (Defendant’s Exhibit E) and Bush reported that she had
observed plaintiff behave inappropriately with two female customers in one day but had
never seen him do so with other employees (Defendant’s Exhibit G). Plaintiff states that Mr.
Massey terminated his employment and that plaintiff “asked why [he] was being terminated,
but was never given a reason” until, “[a]fter three weeks, two emails and a call from [his]
attorney, [he] received a letter indicating that [he] was terminated for ‘breaking company
policy[.]’” (Plaintiff’s declaration, ¶¶ 25-26). The evidence that Massey refused to give
plaintiff a reason for his termination and that Bush did not observe plaintiff behave

15

According to defendant’s response to the EEOC, the May 7, 2012 disciplinary warning
resulted from a complaint made by Nelson. (Defendant’s Exhibit K, p. 2 n. 1).
22

inappropriately toward other employees does not permit a reasonable inference that Massey
knew that the allegations regarding plaintiff’s conduct were fabricated, or even that Massey
did not believe his employees’ statements. Thus, as to the allegations of sexual harassment
made by defendant’s employees, the evidence of record – viewed in the light most favorable
to plaintiff – permits an inference that the accusations defendant received about plaintiff’s
conduct were false, but does not permit a reasonable inference that Massey knew them to be
false.
Defendant concedes that the undisputed facts establish a prima facie case of
discrimination on the basis of his age as to plaintiff’s termination. See Doc. # 28, p. 13 (“[I]t
is undisputed that the Plaintiff is over the age of forty, that he was qualified for the position
he held, that Massey Auto terminated his employment and that he was replaced by a younger
individual[.]”); id. at p. 11 (stating elements of prima facie case); see also Doc. # 33-1,
plaintiff’s declaration, ¶¶ 1-6, 25-27. A prima facie case of termination because of age
includes, by definition, evidence of facts “from which a fact finder could reasonably
conclude that the employer intended to discriminate on the basis of age.” Corbin v. Southland
International Trucks, 25 F.3d 1545, 1549 (11th Cir. 1994).
Thus, drawing all reasonable inferences in plaintiff’s favor, his outrage claim rests on
the following circumstances: (1) Nelson and Messick falsely reported that plaintiff had
sexually harassed them; (2) Bush falsely reported that she had seen plaintiff behave
inappropriately with two female customers but also reported truthfully that she had not seen

23

him do so with employees; (3) Massey – who may or may not have believed or known the
reports to be false – terminated plaintiff’s employment with the intent to discriminate against
him due to his age, and without giving him a reason; and (4) defendant made statements to
its employees16 that plaintiff was terminated for sexual harassment. The court concludes that
these circumstances are not sufficiently outrageous and extreme to support a claim of
intentional infliction of emotional distress under Alabama law. See Inmon, 394 So.2d at 36768 (finding that employer’s behavior was not, as a matter of law, sufficiently outrageous in
character and extreme in degree to support a claim for intentional infliction of emotional
distress; plaintiff’s evidence “showed that he had been harassed, investigated without cause,
humiliated, accused of improper dealings, treated uncustomarily, and terminated without
justification[,]” and his honesty was questioned). A termination of employment motivated
by unlawful animus may, in sufficiently egregious circumstances, give rise to an outrage
claim; however, this is not such a case. Compare Rice v. United Ins. Co. of America, 465
So.2d 1100, 1102 (Ala. 1985)(reversing dismissal of outrage claim for failure to state a
claim; plaintiff “allege[d] a pattern of activity, encompassing a period of several months[,]”

16

As discussed above, defendant has established that its statements to the EEOC and to this
court are absolutely privileged. Therefore, under Alabama law, these statements cannot give rise
to defendant’s tort liability. See Butler v. Town of Argo, 871 So.2d 1, 23-25 (Ala. 2003)(holding
that allegedly false and defamatory statements made by the defendant were absolutely privileged as
to the plaintiff’s defamation and invasion of privacy claims); Drees v. Turner, 45 So. 3d 350, 358-59
(Ala. Civ. App. 2010)(Absolutely privileged statements, no matter how false or malicious, cannot
be made the basis of civil liability. That rule applies equally to claims other than those based on
defamation. ... [A] claim for civil damages may not rest on pertinent statements made in the course
of judicial proceedings.”)(citations omitted); see also Inmon, 394 So.2d at 365 (tort of outrage
“applies only to unprivileged, intentional or reckless conduct of an extreme and outrageous nature,
and only that which causes severe emotional distress”)(emphasis added).
24

the alleged behavior “involved a great many persons ([plaintiff’s] co-workers, clients, and
husband) in addition to [plaintiff] and the defendants[,]” defendants’ “alleged pattern of
outrageous acts were directed toward plaintiff when [the defendant supervisor] was likely to
know that severe emotional distress could have serious physical repercussions[,]” and
defendants’ actions “were directed toward an illegal purpose, discrimination against an
employee because of sex”)(emphasis in original); and McIsaac v. WZEW-FM Corp., 495
So.2d 649, 651 (Ala. 1986)(affirming summary judgment against plaintiff on outrage claim;
holding that plaintiff “failed to establish any evidence of extreme and outrageous conduct”
despite evidence that the defendant corporation’s owner/president made personal advances
toward the plaintiff over a three-month period (including asking her to have an affair with
him, trying to kiss her, giving her suggestive looks, and touching her) and pressured the
station manager to dismiss her because she had rejected his sexual advances, resulting in
termination of her employment); see also Buzbee v. Alabama Waste Services, Inc., 709 So.2d
61 (Ala. Civ. App. 1998)(reversing summary judgment in favor of employer as to plaintiff’s
claim that employer discharged him in retaliation for filing a workers’ compensation claim
but affirming it as to his outrage claim); King v. CVS Caremark Corp., __ F. Supp.2d __,
2014 WL 868079, **5-8, 19-20 (N.D. Ala. Mar. 5, 2014)(denying summary judgment on
plaintiff’s ADEA/AADEA termination claims, but granting summary judgment on outrage
claim arising from the defendants’ “cumulative negative treatment” of the plaintiff, including
his supervisor’s numerous “retirement-related” comments to the plaintiff during the period
from “late 2010” through September 20, 2011; noting that “to the extent that the Supreme
25

Court of Alabama has found [an outrage] claim to be appropriate in an employment-related
lawsuit, such circumstances have been confined to situations involving egregious
harassment”); Walker v. ITT Educational Services, Inc., 2013 WL 979087, **3-4 (N.D. Ala.
Mar. 13, 2013)(claim that alleged a termination in violation of the FMLA failed to state an
outrage claim, as it included no allegations of an “onslaught of harassment” or other
“extreme and outrageous” circumstances); Estate of Reed v. Ponder Enterprises, Inc., 2012
WL 1031487, **7-8 (M.D. Ala. Mar. 27, 2012)(“Although the Estate alleges that the
Defendants were willfully malicious, the alleged conduct does not rise to the level of
outrageousness that will support a claim for intentional infliction of emotional distress under
Alabama law. In fact, if the tort of outrage were recognized under the circumstances alleged
in this case, it would mean that the tort of outrage would exist in every ADA case when an
employer intentionally discriminates or retaliates against a disabled employee – a result not
consistent with the ‘extremely limited’ nature of the tort of outrage in Alabama.”).
Accordingly, defendant is entitled to summary judgment as to Count Five, plaintiff’s claim
of intentional infliction of emotional distress.
Age Discrimination Claims
Under the Age Discrimination in Employment Act (“ADEA”), it is unlawful for an
employer to discriminate against an employee who is at least forty years old because of his
or her age. 29 U.S.C. §§ 623(a)(1), 631(a). Such conduct is also prohibited by the Alabama

26

Age Discrimination in Employment Act (“AADEA”). Ala. Code, §§ 25-1-20, et seq.17 In
Counts One and Two, plaintiff claims that defendant is liable to him under the ADEA and
AADEA for terminating his employment because of his age. The McDonnell
Douglas/Burdine18 framework was established by the Supreme Court for evaluating a Title
VII plaintiff’s claims of discrimination against an employer where, as here, there is no direct
evidence of discrimination. See Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th
Cir. 1997). This analytical framework also applies to claims of age discrimination under the
ADEA and AADEA. Sims v. MVM, Inc., 704 F.3d 1327, 1332-33 (11th Cir. 2013); Kragor
v. Takeda Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012); Robinson
v. Alabama Central Credit Union, 964 So.2d 1225, 1228-29 (Ala. 2007). If the plaintiff
establishes a prima facie case of discrimination, the “burden shifts to the employer to rebut
the presumption of discrimination with evidence of a legitimate, nondiscriminatory reason
17

The AADEA’s prohibitions and authorizations of employment practices mirror those of
the ADEA. AADEA and ADEA claims are substantially the same, except that the former does not
require exhaustion of administrative remedies. See Howard v. Steris Corp., 886 F.Supp.2d 1279,
1298 (M.D. Ala. 2012)(“Because the [ADEA and AADEA] are nearly identical, the Court will apply
the same standards to both claims.”); Ala. Code, § 25-1-29. The AADEA provides that a plaintiff
is entitled to but “one recovery of damages.” Ala. Code, § 25-1-20, et seq. Defendant urges the
court to dismiss plaintiff’s AADEA claim as “duplicative” of his ADEA claim. The Alabama statute
can be interpreted to require a plaintiff to elect between pursuing an age discrimination claim under
ADEA or doing so pursuant to the AADEA (see Collins v. Compass Group, Inc., 965 F.Supp.2d
1321, 1329-31 (N.D. Ala. 2013)); however, read as a whole, the “[e]lection of remedies” provision
of the AADEA appears to be directed to the issue of duplicative federal and state age discrimination
lawsuits. It does not appear to contemplate or address a plaintiff’s pursuit of ADEA and AADEA
claims in the same lawsuit. See Ala. Code, § 25-1-29; Wallace v. Jim Walter Homes, Inc., 68
F.Supp.2d 1303 (M.D. Ala. 1999). Thus, the court declines to dismiss plaintiff’s AADEA claim as
duplicative of his ADEA claim.
18

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981).
27

for the adverse employment action.” Kragor, 702 F.3d at 1308. “If the employer meets its
burden of production, the presumption of discrimination raised by the plaintiff’s prima facie
case is rebutted and thus disappears. Once the presumption of discrimination is rebutted, the
inquiry proceeds to a new level of specificity, whereby the plaintiff must show the
employer’s proffered reason to be a pretext for unlawful discrimination.” Smith v. LockheedMartin Corp., 644 F.3d 1321, 1325-26 (11th Cir. 2011)(citations and internal quotation marks
omitted).
As noted above, defendant concedes the existence of a prima facie case of age
discrimination. (Defendant’s brief, Doc. # 28, pp. 11, 13). It contends that it is entitled to
summary judgment, however, because plaintiff cannot establish that the legitimate,
nondiscriminatory reason it has articulated (i.e., that it terminated plaintiff’s employment as
a result of Nelson’s sexual harassment charge and information it obtained about other
instances of inappropriate conduct in the course of investigating that EEOC charge) is
pretextual. (Id., pp. 13-18). As is also noted above in connection with plaintiff’s outrage
claim, the evidence presently of record is not sufficient to permit a reasonable inference that
Mr. Massey – the person who, according to the plaintiff, terminated his employment19 –
knew the allegations of sexual harassment to be false.
However, defendant – which bears the burden of production on the present motion as

19

Defendant requested that plaintiff admit “that [he was] terminated by Joey Langley.”
(Defendant’s Exhibit B, # 14). Plaintiff denied the assertion. (Id.). Thus, it appears that defendant
may contend that the actual decisionmaker was Langley, not Massey.
28

to its nondiscriminatory reason(s) for the adverse employment decision – has failed to
introduce evidence that is sufficient to rebut the presumption of discrimination arising from
plaintiff’s prima facie case. Defendant has submitted evidence of misconduct by the plaintiff
that might well have motivated Mr. Massey (or the actual decisionmaker, if not Mr. Massey)
to fire the plaintiff (Exhibits E, F, G), as well as evidence that its attorney reported to the
EEOC on its behalf that plaintiff “was terminated because Massey Automotive had a
reasonable belief that he violated the company’s anti-harassment policy” (Exhibit K).20 It
has not, however, provided the court with competent evidence that the accusations of sexual
harassment actually motivated the decisionmaker to fire the plaintiff. “If there [is] no
evidence that asserted reasons for discharge were actually relied on, the reasons are not
sufficient to meet defendant’s rebuttal burden.” Lee v. Russell County Board of Education,
684 F.2d 769, 775 (11th Cir. 1982); see also Walker v. Mortham, 158 F.3d 1177, 1184 (11th
Cir. 1998)(“Although this burden [of production] is not ‘onerous,’ neither is it a mere
formality. ...’[T]he defendant must clearly set forth, through the introduction of admissible
evidence’ the reason for its adverse employment decision[.]”)(citing Burdine, 450 U.S. at
253, 255); id. at 1181 n. 8 (“Our precedent requires that if a defendant raises as its legitimate,
nondiscriminatory reason relative qualifications of the applicants, the defendant ‘must
include the fact that the decision-maker knew that the promoted individual’s qualifications

20

In defendant’s response to plaintiff’s EEOC charge, Galese does not identify the person
(or persons) who made the termination decision at issue. See Defendant’s Exhibit K, p. 2 (“As a
result of Mr. Nelson’s charge and the information obtained from Ms. Messick and Ms. Bush, who
were deemed to be credible, Massey Automotive made the decision to terminate Mr. Redmon.”).
29

were superior at the time the decision was made.’ ... The defendant cannot testify in abstract
terms as to what might have motivated the decision-maker; it must present specific evidence
regarding the decision-maker’s actual motivations with regard to each challenged
employment decision.”)(citations omitted; emphasis added); Turnes v. AmSouth Bank, NA,
36 F.3d 1057, 1061 (11th Cir. 1994)(“[A]lthough it is true that the employer need not prove
it was actually motivated by the proffered reason, Burdine clearly does not relieve the
employer from producing a reason that was available to it at the time of the decision’s
making. Moreover, this Court has squarely held that an employer may not satisfy its burden
of production by offering a justification which the employer either did not know or did not
consider at the time the decision was made.”)(emphasis in original); Increase Minority
Participation by Affirmative Change Today of Norwest Florida, Inc. (IMPACT) v. Firestone,
893 F.2d 1189, 1195 n. 5 (11th Cir. 1990)(Burdine requires, as to the employer’s legitimate
reason, “evidence of a sort that will give a fair opportunity to cross-examine the defendant’s
witnesses as to the actual reason which is testified to.”)(citation omitted).21
21

In Turner v. Kansas City Southern Ry. Co., 675 F.3d 887, 902 (5th Cir. 2012), the Fifth
Circuit found evidence similar in nature to defendant’s evidence in this case to be insufficient to
discharge the employer’s rebuttal burden. See id. at 903 (“KCSR then cites Turner’s and Thomas’
discharge letters, which it says ‘set forth the grounds on which the Charging Parties were
disciplined.’ Although the discharge letters state that Turner and Thomas were found to have
violated certain workplace rules, they do not provide any reason for Thornell’s decisions to dismiss
these employees: The letters are not signed by Thornell; they do not mention the employees’
disciplinary histories; and they do not give any indication that they reflect Thornell’s reason for
choosing to dismiss the employees, as opposed to merely suspending them.”)(citation to brief
omitted; emphasis in original); id. at 903-04 (“KCSR next cites ‘[t]he transcripts of the investigative
hearings,’ which again, it asserts ‘set forth the grounds on which discipline was decided.’ However,
the hundreds of pages of transcripts that KCSR cites discuss only the circumstances of the incidents
in which Turner, Frank and Cargo were involved ... The transcripts do not, as KCSR asserts, include
any reason for why the particular disciplinary decisions were made.”)(citation to brief omitted).
30

Because defendant has not satisfied its burden of production, it has failed to rebut the
presumption of age discrimination raised by plaintiff’s prima facie case and, thus, it is not
entitled to summary judgment on plaintiff’s ADEA and AADEA claims. See Turnes, 36 F.3d
at 1061 (“[W]here a plaintiff’s prima facie case is established, but the employer fails to meet
its burden of production, the unrebutted presumption of discrimination stands.”)(emphasis
in original).
CONCLUSION
For the foregoing reasons, it is
ORDERED that defendant’s motion for summary judgment (Doc. # 27) is GRANTED
as to Counts Three, Four, and Five of the Complaint (plaintiff’s state law defamation and
outrage claims) and DENIED as to Counts One and Two (plaintiff’s ADEA and AADEA
claims).
DONE, this 29th day of September, 2014.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

31