Pace v. Alfa Mutual Insurance Company et al
MEMORANDUM OPINION: Alfa's 66 motion for summary judgment was granted in part and denied in part. (Doc. # 97 ) The summary judgment motion was granted as to Plf's state law claims in Counts II, III,IV, and V of the complaint; The summary judgment motion was denied as to Plf's Title VII claim of retaliation in Count I. Signed by Chief Judge William Keith Watkins on 4/6/2016. (Attachments: # 1 Civil Appeals Checklist) (wcl, ) (Main Document 98 replaced on 4/6/2016) (wcl, ). Modified on 4/6/2016 to attach a corrected PDF document to correct a clerical error to reflect the correct pleading name as Memorandum Opinion (wcl, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
ROBERT W. PACE,
ALFA MUTUAL INSURANCE
COMPANY, et al.,
CASE NO.: 2:13-CV-697-WKW
This is an employment discrimination case. On September 26, 2013, Plaintiff
Robert W. Pace (“Plaintiff”) filed a complaint against Defendants Alfa Mutual
Insurance Company, Alfa Life Insurance Corporation, and Alfa Corporation
(collectively “Alfa”). Plaintiff claims that Alfa retaliated against him for participating
in a sexual harassment investigation and lawsuit (Count I), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Doc. # 1).
Plaintiff further asserts several state law claims: (1) negligent and/or wanton hiring,
training, supervision and retention (Count II); (2) fraudulent misrepresentation (Count
III); (3) fraudulent suppression (Count IV); and (4) negligent and/or wanton
misrepresentation and suppression (Count V).
On March 31, 2016, the court entered an order granting in part and denying in
part Alfa’s motion for summary judgment. (Doc. # 97.) This opinion sets forth the
reasoning underlying that ruling.1
I. JURISDICTION AND VENUE
Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331 and
1337. Personal jurisdiction and venue are not contested.
II. BACKGROUND AND OPERATIVE FACTS2
Plaintiff began his employment with Alfa in November of 1986 in Mississippi.
He served twenty-seven years with Alfa as an at-will employee. From approximately
April of 1990 to April of 2013, he was employed by Alfa as Senior Vice President of
Marketing for the State of Mississippi. Plaintiff held the same position for the State
of Georgia from January of 2010 through April of 2013. Between 1997 and June of
2000, Alvin H. Dees, Jr., Executive Vice President of Marketing, was Plaintiff’s
On November 25, 2015, Alfa’s summary judgment motion was referred to the Honorable
Paul W. Greene. (Doc. # 88.) However, by separate order entered on March 31, 2016, the order
referring this case to Judge Greene has been vacated. (Doc. # 96.)
The following statements are the “facts” for summary judgment purposes only, and may
not be the actual facts. See Cox v. Adm'r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400
(11th Cir. 1994). The court has gleaned these statements from the parties’ submissions of facts
claimed to be undisputed, their respective responses to those submissions, and the court’s own
examination of the evidentiary record. All reasonable doubts about the facts have been resolved in
favor of the nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220,
1224 (11th Cir. 2002).
In September of 2000, an Alfa employee named Tracy Reid Wilson filed an
action against Dees and Alfa, charging them with sexual harassment, discrimination,
and retaliation (“Wilson matter”).3 During the litigation of the Wilson matter, Plaintiff
was interviewed on several occasions either by representatives of Alfa or their
counsel. Plaintiff was also deposed as a witness in that case. According to Plaintiff,
Dees was present at Plaintiff’s deposition in the Wilson matter.
Plaintiff testified that, in or around September of 2000, after he was
interviewed in connection with the Wilson matter, Dees confronted Plaintiff and
asked him about what he was asked in the interview and how he responded. Plaintiff
further testified with respect to this encounter that: (1) Plaintiff told Dees he was
asked about any business trips the two of them had together; (2) Plaintiff specifically
discussed with Dees a trip to Galveston where Dees and Wilson were in the hotel
room for a couple of days; and (3) after telling Dees that the situation has placed him
in a difficult situation, Dees became furious and told Plaintiff while walking away
that “he was through with [Plaintiff].” Dees testified that he did not recall having this
conversation with Plaintiff and that he did not know Plaintiff was a witness in the
Wilson action. (Doc. # 68-3 at depo. p. 62.)
Court records reflect that, on January 17, 2001, Wilson filed an employment discrimination
action in this Court, Wilson v. Alfa Mutual Insurance Company, et al., Civil Action No. 2:01-cv-66ID-VPM. The parties, nevertheless, consistently refer to the litigation in the Wilson matter as
commencing in or around September of 2000.
Before the litigation involving the Wilson action had occurred, Plaintiff
interacted with Dees and Wilson on various occasions. Plaintiff testified that “[he]
was very much aware that [Dees] knew that [Plaintiff] knew many damaging things
to [Dees] that would have been” harmful to Dees had Plaintiff revealed them. (Doc.
# 68-1 at depo. p. 20.) Plaintiff was aware that Wilson had accompanied Dees and
Plaintiff “on a number of business trips,” in addition to the Galveston trip, and that
Wilson “had no business purpose for being there.” (Doc. # 68-1 at depo. p. 14.)
Plaintiff was also present when Dees and Wilson concocted a scheme to set up Alfa’s
president at the time, Goodwin Myrick, by having Wilson seduce Myrick so that he
could get Myrick fired and Dees could advance in the company. (Doc. # 68-1 at
depo. pp. 35-36.) According to Plaintiff, Dees was aware that Wilson “had been
confiding a lot of harmful information to [Plaintiff].” (Doc. # 68-1 at depo. p. 35.)
Dees’s employment with Alfa ended with an early retirement in October of
2000. (Doc. # 68-3 at depo. pp. 20, 54.) Jerry Newby, Alfa’s president from
December of 1998 through December of 2012, testified that he had talked to Dees
after the Wilson action had commenced. (Doc. # 90-1 at depo. p. 17.) Newby
informed Dees that he could not have Dees working for the company anymore
because Newby could not trust him. (Doc. # 90-1 at depo. pp. 17, 20.) Newby further
testified that if Dees had not retired, he would not have allowed Dees to continue his
employment. (Doc. # 90-1 at depo. p. 21.)
In December of 2012, Jimmy Parnell was elected president and chief executive
officer (“CEO”) of Alfa. (Doc. # 68-1 at depo. p. 232; Doc. # 68-4 at depo. pp. 7-8.)
As an outsider, Dees had supported Parnell’s campaign to become president. (Doc.
# 68-3 at depo. p. 9.) At that time, Plaintiff asked Parnell whether there would be any
changes with respect to Plaintiff’s position as vice president of marketing for
Mississippi and Georgia, and Parnell told Plaintiff that he “had been a bright spot in
this organization for years now” and that he had “nothing to be concerned about” with
respect to his job or position in the company. (Doc. # 68-1 at depo. p. 88; Doc. # 684 at depo. p. 72.)
Plaintiff assumed Parnell’s reassurance meant “whatever
restructuring was going to happen in the near future in the early stages of his tenure,
that it was not going to affect [Plaintiff] because [his] job and [his] status w[ere]
secure for this period of time.” (Doc. # 68-1 at depo. p. 90.) Plaintiff relied on
Parnell’s reassurance by continuing to work for Alfa rather than move to a different
company. (Doc. # 68-1 at depo. p. 89.)
In the fall of 2012, the president of Cotton States, Jeff Koerner, indicated to
Plaintiff that he might have a position available for Plaintiff at Cotton States. (Doc.
# 68-1 at depo. pp. 112-13.) Plaintiff chose not to pursue this potential lead for a job
after his conversation with Parnell and was otherwise never offered any position with
Cotton States. (Doc. # 68-1 at depo. p. 113.) Plaintiff did not look at any other job
opportunity during this time when Alfa’s leadership was changing.
During his campaign to become Alfa’s president and CEO, Parnell stated that
he would rehire Dees even though he was familiar with the controversy surrounding
the Wilson action. (Doc. # 68-1 at depo. p. 229; Doc. # 68-3 at depo. pp. 9-10.)
Despite dissension from some of Alfa’s board members, Parnell was granted authority
to rehire Dees, and his hiring became effective on February 1, 2013. (Doc. # 68-4
at depo. pp. 33-34.) Effective February 1, 2013, Dees assumed the position of
executive vice president of marketing—the position he had held previously—and
again served as Plaintiff’s supervisor. (Doc. # 68-2 at p. 10; Doc. # 68-3 at depo. p.
16.) Before Dees returned to Alfa, Plaintiff’s production was up 13 percent and was
better than all other districts in Alfa’s organization. (Doc. # 68-3 at depo. p. 31.)
On January 31, 2013, Plaintiff and Dees engaged in a telephone conversation
in which Dees said, “[B]oy, I bet you thought you’d never have to mess with me again
now, didn’t you?” (Doc. # 68-1 at depo. p. 9.) When Plaintiff mentioned the name
of Jerry Newby to Dees during a conversation, Dees told Plaintiff that Newby had
ruined his life and that Newby “got rid of” Dees even though Dees had offered to pay
the settlement in the Wilson case. (Doc. # 68-1 at depo. p. 25.) Dees also
communicated to Plaintiff his anger regarding Alfa’s general counsel, Al Scott, who
had tried to prevent Dees from returning to the company. (Doc. # 68-1 at depo. pp.
Plaintiff testified about several instances of Dees’s hostility toward him upon
Dees’s return to Alfa. During his first week back on the job, Dees transferred
Plaintiff’s administrative assistant, Allison Nicholson, to be his own assistant without
notifying Plaintiff. (Doc. # 68-1 at depo. pp. 130, 137, 277.) When Plaintiff
discussed the transfer matter with Dees, his supervisor said, “[I]f that’s the worst
thing I do to you, . . . you’ll be all right.” (Doc. # 68-1 at depo. p. 277.) Next, during
a managerial meeting, Plaintiff commented that there were some underwriting issues
that were keeping him up at night to which Dees walked over to Plaintiff and said,
“[T]hat ain’t why you’re losing sleep at night now, is it?” (Doc. # 68-1 at depo. pp.
131-32.) Plaintiff further testified that: (1) Dees presented a video at a sales meeting
showing Plaintiff from the torso down but with his head cut off; (2) it was clear he
was “an outcast” as nobody would look him in the eye; (3) Carol Gholson, a highlevel managerial employee with Alfa and who had observed Dees’s interaction with
Plaintiff, advised Plaintiff that he should go work for another company; and (4)
another agent informed Plaintiff that Plaintiff was on Dees’s hit list. (Doc. # 68-1 at
depo. pp. 132, 134-35.)
After Parnell’s election, many personnel and structural changes occurred at
Alfa. One change involved Plaintiff’s peer, Patrick Smith, who held the position of
senior vice president of marketing for Alabama during the relevant time period.
(Doc. # 68-1 at depo. p. 49; Doc. 68-3 at depo. p. 89.) Smith’s job was eliminated on
February 15, 2013, and he was then fired. (Doc. # 68-1 at depo. p. 49-50, Doc. 68-2
at p. 8; Doc. 68-3 at depo. p. 89.) Other changes also took place at Alfa:
On March 22, 2013, Chad Watts was demoted from regional
marketing vice president in Alabama to an agent, which was
lower than the level of district manager. (Doc. # 68-1 at depo. p.
83, Doc. # 68-2 at pp. 8-9; Doc. # 68-4 at depo. p. 85.)
On March 22, 2013,Tommy Coshatt, who was the other regional
marketing vice president in Alabama, was demoted to a district
manager position. (Doc. # 68-2 at p. 9; Doc. # 68-4 at depo p.
On March 22, 2013, David Christenberry and Tim Timmons were
promoted from their district manager positions to regional vice
presidents for marketing for South and North Alabama,
respectively. (Doc. # 68-1 at depo p. 104; Doc. # 68-2 at p. 9.)
On April 30, 2013, Dees directed Darrell McNeal and Mark
Evans, who were both state marketing vice presidents in the
“Georgia/Mississippi sales and marketing team” to report directly
to Dees. (Doc. # 68-2 at p. 11.)
On April 30, 2013, Mickey Lambert, a district manager at the
time, was moved to an agent position in Hattiesburg, Mississippi.
(Doc. # 68-2 at p. 11.)
On April 30, 2013, Plaintiff’s position as senior vice president of marketing for
Georgia and Mississippi was eliminated, and he was demoted by Dees to the position
of district manager for South Mississippi. (Doc. # 68-1 at depo. pp. 122-23, 162; 682 at p. 11; Doc. # 68-4 at depo. p. 118; Doc. # 68-6 at depo. pp. 52-53; Doc. # 74-1
at p. 2.) As part of his position as district manager, Plaintiff’s office moved from
Hattiesburg to Jackson, Mississippi. Plaintiff testified that he had once held the
district manager position “some 27 years earlier” and that, even though his salary
would remain the same for approximately one year, it would be “cut by approximately
65%” thereafter. (Doc. # 74-5 at ¶ 11.) When Plaintiff confronted Dees “as to why
he was demoting [Plaintiff] when [Plaintiff] was the only Senior Vice President
whose territory was growing in production, . . . Dees looked at [Plaintiff], stuttered
and stammered, and said, ‘[W]ell, it’s hard to explain.’” (Doc. # 74-5 at ¶ 12.)
On May 17, 2013, Plaintiff corresponded with Parnell, stating his belief that
his “two level demotion” to the district manager position was “motivated by [Dees’s]
personal issues with [Plaintiff] rather than what is best for the company.” (Doc. # 682 at p. 13.) Plaintiff stated in his correspondence that “[f]our Regional Vice President
positions were filled during the restructuring with substantially less experienced
people than” Plaintiff. (Doc. # 68-2 at p. 13.)4 Plaintiff further informed Parnell that:
I was in good standing with Alfa during Mr. Dees’[s] previous tenure
with the company. I was in good standing with Alfa prior to Mr.
Dees’[s] return to Alfa. Shortly after Mr. Dees’[s] return I have been
treated in a grossly unfair manner by him. Due to these facts I can only
conclude that I have been retaliated against by Mr. Dees for my
involvement acting to protect the company during the investigation and
legal proceedings leading up to his termination from Alfa.
(Doc. # 68-2 at p. 14.) Lastly, Plaintiff sought to discuss with Parnell possible
remedies to his situation, including reinstatement to his senior vice president status.
(Doc. # 68-2 at p. 14.)
Parnell traveled by plane to Madison, Mississippi, within one or days to meet
with Plaintiff. (Doc. # 68-1 at depo. pp. 162-63; Doc. # 68-4 at depo. pp. 74-75.) In
that meeting, Parnell informed Plaintiff that Dees had never said anything about
retaliating against Plaintiff and that Parnell had “big plans” for Plaintiff. (Doc. # 68-1
at depo. p. 190.) Plaintiff felt good about the conversation and believed Parnell was
going to find him a secure position in Alfa. (Doc. # 68-1 at depo. pp. 191-92.)
However, through an Alfa representative, Parnell subsequently informed Plaintiff that
if he did not agree to the district manager position he would be provided with a
Plaintiff testified that if he had been offered one of the senior vice president positions, this
lawsuit would not have been filed. (Doc. # 68-1 at depo. pp. 120-21.)
severance package. (Doc. # 68-1 at depo. pp. 193-94.) Plaintiff rejected the
severance offer. (Doc. # 68-1 at depo. p. 196.)
Plaintiff acknowledges that he was doing some aspects of the district manager
job and could have done it better during the time period following his meeting with
Parnell in Madison. (Doc. # 68-1 at depo. p. 199.) In a supervisory report dated July
12, 2013, Plaintiff’s supervisor at that time, Evans, noted Plaintiff’s failure to attend
mandatory meetings, his failure to perform agent reviews as required, and lack of
overall production. (Doc. # 68-2 at pp. 18-19.) Evans’s report further reflected
Plaintiff’s statement that he has “no intention of engaging in the position as district
manager with Alfa.” (Doc. # 68-2 at p. 19.) According to the report, Plaintiff’s
failure to show “immediate, sustained improvement in [his] leadership” would result
in “disciplinary action up to and including termination.” (Doc. # 68-2 at p. 19.)
After consulting with his attorneys, Plaintiff voluntarily resigned from Alfa on
July 22, 2013. Prior to his resignation, on July 3, 2013, Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”)
alleging retaliation in violation of Title VII of the Civil Rights Act of 1964. (Doc.
# 68-2 at pp. 15-16.) The EEOC subsequently issued Plaintiff a notice of right to
sue, and Plaintiff timely filed his complaint in this case on September 26, 2013.
(Doc. # 1-2 at p. 24.)
III. STANDARD OF REVIEW
To succeed on a motion for summary judgment, the moving party must
demonstrate “that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The evidence and
the inferences from that evidence must be viewed in the light most favorable to the
nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
On a motion for summary judgment, the moving party “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying
the portions of the record illustrating the absence of a genuine dispute of material
fact. Id. If the moving party does not bear the trial burden of production, it may
assert, without citing the record, that the nonmoving party “cannot produce
admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also
Fed. R. Civ. P. 56 advisory committee’s note (“Subdivision (c)(1)(B) recognizes that
a party need not always point to specific record materials. . . . [A] party who does not
have the trial burden of production may rely on a showing that a party who does have
the trial burden cannot produce admissible evidence to carry its burden as to the
fact.”). If the moving party meets its burden, the burden shifts to the nonmoving
party to establish—with evidence beyond the pleadings—that a genuine dispute of
material fact exists as to each of its claims for relief. Celotex, 477 U.S. at 324. A
genuine dispute of material fact exists when the nonmoving party produces evidence
allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley
Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).
Retaliation under Title VII
Plaintiff claims in Count I of his complaint that Alfa retaliated against him for
engaging in statutorily protected activity – his participation in a sexual harassment
investigation pertaining to the Wilson action. Section 704(a) of Title VII of the Civil
Rights Act of 1964 provides protection for employees who oppose or participate in
activities to correct an employer’s discriminatory practices.
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for employment
. . . because he [the employee] has opposed any practice made an
unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). Congress thus recognized two predicates for retaliation
claims: one for opposition to discriminatory practices, and another for participation
in protected activity.
Under the opposition clause, an employer may not retaliate against an
employee because the employee “has opposed any practice made an
unlawful employment practice by this subchapter.” . . . And, under the
participation clause, an employer may not retaliate against an employee
because the employee “has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this subchapter.”
Equal Employment Opportunity Comm’n v. Total System Servs., Inc., 221 F.3d 1171,
1174 (11th Cir. 2000) (citations omitted).
Proving that an employer retaliated against an employee is rarely a
A plaintiff’s case generally rests entirely on
circumstantial evidence, because direct evidence of an employer’s intent or
motivation often is either unavailable or difficult to acquire. See Sheridan v. E.I.
DuPont De Nemours & Co., 100 F.3d 1061, 1071 (3rd Cir. 1996) (en banc). Such is
the case here as the parties rely only on circumstantial evidence. Federal courts
typically evaluate the sufficiency of circumstantial evidence using some variant of the
well-known framework articulated by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and elaborated in Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). See also St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993). As Justice O’Connor observed in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), “the entire purpose of the McDonnell
Douglas prima facie case is to compensate for the fact that direct evidence of
intentional discrimination is hard to come by.” 490 U.S. at 271 (O’Connor, J.,
“A prima facie case of retaliation under Title VII requires the plaintiff to show
that: (1) [he] engaged in an activity protected under Title VII; (2) [he] suffered an
adverse employment action; and (3) there was a causal connection between the
protected activity and the adverse employment action.” Crawford v. Carroll, 529
F.3d 961, 970 (11th Cir. 2008) (citing Pennington v. City of Huntsville, 261 F.3d
1262, 1266 (11th Cir. 2001)). The Supreme Court recently clarified a plaintiff’s
burden and held that, as to the causation standard for a retaliation claim, a plaintiff
must “show that the [adverse employment action] would not have occurred in the
absence of—that is, but-for—the defendant’s conduct.” Univ. of Texas Sw. Med. v.
Nassar, — U.S. —, 133 S. Ct. 2517, 2525 (2013).5 In other words, a plaintiff has to
“establish that his or her protected activity was a but-for cause [and not just a
motivating factor] of the alleged adverse employment action by the employer.”
Nassar, 133 S. Ct. at 2534.
A split among various federal courts exists as to whether it is appropriate to impose the
Nassar standard at the prima facie stage or pretext stage of analysis, and there is no published
Eleventh Circuit decision on the topic. But see Murphree v. Comm’r, No. 15-11737,
___ F. App’x ___, 2016 WL 827318, at *4 (11th Cir. Mar. 3, 2016) (observing that “[u]ltimately,
Title VII retaliation claims require proof that ‘[the] protected activity was a but-for cause of the
alleged adverse action by the employer,’” id. at *4 (quoting Nassar, 133 S. Ct. at 2534), but
concluding that, “[b]ecause [the plaintiff’s] claims fail under the burden-shifting framework
established well before Nassar, we need not address whether Nassar changed our analysis of
retaliation claims at summary judgment,” id. at 5). The conflict need not be resolved here.
Once a plaintiff establishes a prima facie case, the burden shifts to the
employer to show, through admissible evidence, a legitimate, non-retaliatory reason
for the adverse employment action. Burdine, 450 U.S. at 255. If a defendant carries
its burden of producing “admissible evidence which would allow the trier of fact
rationally to conclude that the employment decision had not been motivated by
[retaliatory] animus,” id. at 257, the presumption of retaliation created by the prima
facie case “drops from the case,” and “the factual inquiry proceeds to a new level of
specificity.” Id. at 255 & n.10. The burden then shifts to the plaintiff to “come
forward with evidence, including the previously produced evidence establishing the
prima facie case, sufficient to permit a reasonable factfinder to conclude that the
reasons given by the employer were not the real reasons for the adverse employment
decision,” but merely pretext for retaliation. Combs v. Plantation Patterns, 106 F.3d
1519, 1528 (11th Cir. 1997) (citing Burdine, 450 U.S. at 256; McDonnell Douglas,
411 U.S. at 804).
Prima Facie Case
Alfa concedes that Plaintiff’s participation in the Wilson action constituted
statutorily protected activity under Title VII. (Doc. # 67 at p. 4.) With regard to the
second element of Plaintiff’s prima facie case, Plaintiff contends that he suffered an
adverse employment action in the form of his demotion to the district manager
position and resulting pay cut. (Doc. # 74 at pp.12-14.) Alfa does not dispute that
such actions constitute adverse employment actions. (Doc. # 67 at p. 4; Doc. 78
at p. 2.)6
With respect to his prima facie case of retaliation, therefore, Plaintiff must
show that the adverse employment action was causally related to his protected
expression. To establish a causal connection, the plaintiff must demonstrate that “the
decision-makers were ‘aware of the protected conduct, and that the protected activity
and the adverse action were not wholly unrelated.’” Carson v. Metro. Atlanta Rapid
Transit Auth. (MARTA), 572 F. App’x 964, 969 (11th Cir. 2014) (quoting McCann
v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008)).
Alfa argues, with at least superficial factual support, that there is no temporal
proximity between the protected activity in 2000 and the alleged retaliation in and
after 2013. Ordinarily, “close temporal proximity between the employee’s protected
conduct and the adverse employment action is sufficient circumstantial evidence to
In his complaint, Plaintiff alleged that the supervisory report issued to him in July of 2013
by Evans was an adverse action taken in retaliation for his filing an EEOC charge, thereby
constituting a constructive discharge. (Doc. 1 at ¶ 47.) Plaintiff, however, makes no argument in
his response to Alfa’s summary judgment motion that Evans’s supervisory report constitutes an
adverse action. Accordingly, Plaintiff has abandoned any such claim of an adverse employment
action relating to Evans’s report. See Fischer v. Fed. Bureau of Prisons, 349 F. App’x 372, 375 n.2
(11th Cir. 2009) (explaining that plaintiff waived a claim by not addressing that issue in response
to a summary judgment motion); Marable v. Marion Military Institute, 906 F. Supp. 2d 1237, 1260
(S.D. Ala. 2012) (recognizing that “[g]rounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned”).
create a genuine issue of material fact of a causal connection.” Brungart v. BellSouth
Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000). The Eleventh Circuit
But mere temporal proximity, without more, must be very close. A three
to four-month disparity between the statutorily protected expression and
the adverse employment action is not enough. Thus, in the absence of
other evidence tending to show causation, if there is a substantial delay
between the protected expression and the adverse action, the complaint
of retaliation fails as a matter of law.
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (citations and
quotations omitted) (emphasis added). “[W]here a plaintiff can establish a causal
connection through ‘other evidence tending to show causation,’ a delay between the
allegedly protected activity and the adverse activity is not fatal.” Ramirez v. Bausch
& Lomb, Inc., 546 F. App’x 829, 832 (11th Cir. 2013) (quoting Thomas, 506 F.3d at
1364). Furthermore, “temporal proximity alone is insufficient to create a genuine
issue of fact as to causal connection where there is unrebutted evidence that the
decision[-] maker did not have knowledge that the employee engaged in protected
conduct.” Brungart, 231 F.3d at 799.
Alfa contends that Plaintiff has failed to establish the requisite temporal
proximity between his adverse action—his demotion to the district manager position
after his position was eliminated—and his protected activity in connection with the
Wilson action in the fall of 2000. (Doc. 67 at pp. 6-7; Doc. 78 at pp. 2-3.) Alfa
further contends that no evidence has been presented showing Dees knew about any
information Plaintiff allegedly provided in his protected activity. (Doc. # 67 at p. 8;
Doc. # 78 at pp. 3-4.)
Plaintiff counters that he “has presented substantial evidence that Dees was
aware of his protected activity from Dees’s personal attendance at Plaintiff’s
deposition in the Tracey Wilson litigation and from Dees’ confrontation of Pace
shortly after Pace was interviewed by Alfa’s attorneys in the” Wilson action. (Doc.
# 74 at p. 14.) With regard to the issue of temporal proximity, Plaintiff contends that
“Dees and [Alfa’s] retaliation against him was immediate, continuing although
interrupted by Dees’ separation from employment with Alfa after the Tracey Wilson
matter, resumed immediately upon Dees’ return as Pace’s supervisor.” (Doc. # 74
at p. 16.) Plaintiff contends, therefore, that “the temporal proximity of the protected
activity and Dees’[s] retaliation was, in fact, very close” and that “the Court should
consider his proffered evidence of temporal proximity, combined with the other facts
concerning causal relation in a light favorable to the Plaintiff.” (Doc. # 74 at p. 18.)
When the evidence is construed in the light most favorable to Plaintiff, he has
come forward with sufficient evidence to raise a genuine dispute of material fact as
to a causal connection between his protected activity and the adverse employment
action taken by Dees on behalf of Alfa. Plaintiff has identified evidence that Dees
was well aware of Plaintiff’s protected activity in connection with his participation
in the Wilson matter. Plaintiff testified that he had interacted with Dees and Wilson
on various occasions prior to the litigation in the Wilson matter, and Dees was aware
that Plaintiff knew many aspects about Dees’s relationship with Wilson that would
be harmful to Dees had Plaintiff revealed them. (Doc. # 68-1 at depo. pp. 20, 34-36.)
Plaintiff further testified that, sometime in or about September of 2000,
representatives of Alfa interviewed him on several occasions in connection with the
Wilson matter. (Doc. # 68-1 at depo. pp. 10-11, 13, 17-19, 21, 245-46.) Around this
time, Dees confronted Plaintiff and asked him about what he was asked in one of his
interviews and how he responded. (Doc. # 68-1 at depo. pp. 10-11, 13-15.) Plaintiff
told Dees while being confronted that Plaintiff was asked about any business trips the
two of them had together, that Plaintiff discussed with Dees one trip to Galveston
where Dees and Wilson were in the hotel room for a couple of days, and that, after
telling Dees that the situation has placed him in a difficult situation, Dees became
furious and told Plaintiff while walking away that “he was through with [Plaintiff].”
(Doc. # 68-1 at depo. pp. 13-15, 39-30.) Even though Plaintiff communicated few
details to Dees about what exactly he disclosed in his interviews, the evidence reflects
that Dees was well aware that Plaintiff possessed critical facts detrimental to his
career. Dees’s concern about what Plaintiff may have disclosed in the investigation
of the Wilson matter soon became confirmed when he lost his job with Alfa in
October of 2000. (Doc. # 68-3 at depo. p. 18-19.)
In arguing that no requisite temporal proximity has been established, Alfa
points out that Plaintiff’s demotion occurred in April of 2013 while Plaintiff’s
protected activity occurred in September of 2000. (Doc. # 67 at pp. 6-7.) However,
Dees left his employment in October of 2000 and had no ability to retaliate against
Plaintiff until he returned as his supervisor on February 1, 2013. (Doc. # 68-2 at p.
10; Doc. # 68-3 at depo. pp. 8, 16, 19; Doc. # 68-4 at depo. p. 35.) The evidence
reflects that, on January 31, 2013, the day before officially returning to Alfa, Plaintiff
and Dees engaged in a telephone conversation in which Dees said, “[B]oy, I bet you
thought you’d never have to mess with me again now, didn’t you?” (Doc. # 68-1 at
depo. p. 9.) Thus, despite the fact years had passed since the time of Plaintiff’s
participation in the Wilson matter, Plaintiff’s testimony indicates that Dees had not
forgotten the circumstances surrounding why he left his employment with Alfa in
Soon after his return to Alfa, Dees engaged in a series of actions that further
illustrate his animosity toward Plaintiff.
Dees quickly transferred Plaintiff’s
administrative assistant to be his own assistant without notifying Plaintiff and said to
Plaintiff, “[I]f that’s the worst thing I do to you, . . . you’ll be all right.” (Doc. # 68-1
at depo. pp. 130, 137, 277.) In addition, the record reflects that:
During a managerial meeting, Plaintiff commented that there were
some underwriting issues that were keeping him up at night to
which Dees walked over to Plaintiff and said, “that ain’t why
you’re losing sleep at night now, is it?” (Doc. # 68-1 at depo. p.
Carol Gholson, a high-level managerial employee with Defendant
and who had observed Dees’s interaction with Plaintiff, advised
Plaintiff that he should go work for another company. (Doc. #
68-1 at depo. p. 134.)
Another agent informed Plaintiff that Plaintiff was on Dees’s hit
list. (Doc. # 68-1 at depo. p. 135.)
On April 30, 2013, Plaintiff’s position as senior vice president of marketing for
Georgia and Mississippi was eliminated, and he was demoted by Dees to the position
of district manager for South Mississippi. (Doc. # 68-1 at depo. pp. 122-23, 162;
Doc. # 68-2 at p. 11; Doc. # 68-4 at depo. p. 118; Doc. # 68-6 at depo. pp. 52-53;
Doc. 74-1 at p. 2.) While approximately three months had passed between Dees’s
return to Alfa and Plaintiff’s demotion and cut in pay, the evidence presented by
Plaintiff regarding Dees’s negative conduct toward Plaintiff shows sufficient
causation between Plaintiff’s protected activity and the adverse employment action.
See Ramirez, 546 F. App’x at 832. Plaintiff, therefore, has established a prima facie
case of retaliation.
Legitimate, Non-Retaliatory Reason for Its Actions
Alfa has met its burden of articulating a legitimate, non-retaliatory reason for
eliminating Plaintiff’s vice-president position and demoting him to a district manager
position. Alfa provides evidence that the decision regarding Plaintiff’s position with
Alfa was only one of several personnel and structural changes made in the company’s
expected reorganization after Parnell’s hire and Dees’s return. (Doc. # 68-1 at depo.
pp. 52, 81-84, 101-04; Doc. # 68-2 at pp. 8-9, 11; Doc. # 68-3 at depo. p. 89; Doc. #
68-4 at depo. pp. 85-88.) These changes included the elimination of Patrick Smith’s
vice-president position in Alabama that had corresponded with Plaintiff’s position as
the senior vice president of marketing for Georgia and Mississippi. (Doc. # 68-1 at
depo. p. 52, Doc. # 68-2 at p. 8; Doc. # 68-3 at depo. p. 89.)
The burden now shifts to Plaintiff to “come forward with evidence, including
the previously produced evidence establishing the prima facie case, sufficient to
permit a reasonable factfinder to conclude that the reasons given by the employer
were not the real reasons for the adverse employment decision,” but merely pretext
for retaliation. Combs, 106 F.3d at 1528 (citing Burdine, 450 U.S. at 256; McDonnell
Douglas, 411 U.S. at 804). Plaintiff cannot demonstrate pretext unless evidence
supports both that the reasons were false and that retaliation was the real reason. See
Hicks, 509 U.S. at 515. See also Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th
Cir. 2000) (stating the plaintiff must meet each proffered reason “head on,” and
cannot succeed by simply disputing the wisdom of the employer’s proffered reasons).
“A plaintiff will withstand summary judgment by demonstrating that ‘such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could find unworthy of credence.’” Baker v. Russell Corp., 372 F. App’x 917, 920
(11th Cir. 2010) (quoting Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d
1276, 1289 (11th Cir. 2005)).
The evidence offered by Plaintiff demonstrates weaknesses and inconsistencies
in Alfa’s proffered legitimate, non-retaliatory reasons for demoting Plaintiff. With
regard to the corresponding elimination of Patrick Smith’s position as senior vice
president of marketing for Alabama and ultimate firing from the company, Plaintiff
testified that Smith had a very short tenure with Alfa and was not in good standing
with the company before Parnell’s hire and Dees’s return. (Doc. # 68-1 at p. 33.)
In contrast to Smith’s situation, the record reflects that Plaintiff was employed
with Alfa for twenty-seven years, that Plaintiff had been promoted consistently within
the organization, that Plaintiff had received numerous accolades for his job
performance, and that Plaintiff had not received a single negative or non24
complimentary report in his personnel file at any time before Dees returned to Alfa
on February 1, 2013. (Doc. # 74-2 at pp. 2-8; Doc. # 78-3 at pp. 2-8; Doc. # 78-5 at
¶ 13.) In December of 2012, Parnell recognized Plaintiff’s long-term success by
communicating to Plaintiff that he “had been a bright spot in this organization for
years now” and that he has “nothing to be concerned about” with respect to his job
or position in the company. (Doc. # 68-1 at depo. p. 88; Doc. # 68-4 at depo. p. 72.)
Moreover, according to Dees himself, Plaintiff’s production was up 13 percent from
the previous year and was higher than all other districts in Alfa’s organization. (Doc.
# 68-3 at depo. p. 31.)
Plaintiff contends that his demotion took place at the same time several lesserqualified individuals in the company were promoted to regional-level jobs. (Doc. #
68-1 at depo. p. 126; Doc. # 74 at p. 21.) Specifically, the evidence presented reflects
that: (1) on March 22, 2013, Christenberry and Timmons were promoted from their
district manager positions to regional vice presidents for marketing for south and
north Alabama respectively (Doc. # 68-1 at depo. pp. 104; Doc. # 68-2 at p. 9); and
(2) on April 30, 2013, Dees directed McNeal and Evans, who were both state
marketing vice presidents in the “Georgia/Mississippi sales and marketing team” to
report directly to Dees (Doc. # 68-2 at p. 11). Plaintiff testified with regard to these
promotions and Smith’s firing that:
What I contend is that because I had been there significantly longer,
because I had worked for Al Dees and been promoted several times by
him, because I had been promoted over people who received those jobs
of senior vice – those regional senior vice president jobs who were with
the company at the time that I was being promoted by Al Dees. So he
could have given those jobs to them at any point during that time, but he
didn’t. He gave it to me.
And now all of a sudden he comes back and everything is different and
he could have given me those jobs again, but instead he gave two of
them to people who had no regional level experience whatsoever, one
of them who he had tried to fire before he was – lost his job in his
(Doc. # 68-1 at depo. p. 126.) Plaintiff clarified that Dees had tried to fire
Christenberry during his tenure before leaving Alfa in 2000. (Doc. # 68-1 at depo.
Plaintiff has presented evidence that raises a genuine dispute of material fact
as to whether Dees’s real reason for demoting Plaintiff and cutting his pay was, in
fact, due to his desire to retaliate against Plaintiff for his having participated in the
Wilson matter. As discussed above, around the time Plaintiff was interviewed in
connection with the Wilson matter, Dees confronted Plaintiff and asked him about
what he was asked in the interview and how he responded. (Doc. # 68-1 at depo. pp.
10-11, 13-15.) The record further reflects that Dees began to antagonize Plaintiff
immediately upon reassuming his post in 2013 as Plaintiff’s supervisor. (Doc. # 68-1
at depo. pp. 11, 130-31, 137-38, 277.) Dees’s behavior toward Plaintiff suggests that
he had not forgotten the circumstances that led to his departure from Alfa in 2000.
Other Alfa employees noted Dees’s hostility, leading them to inform Plaintiff that he
was on Dees’s hit list and should look for another job. (Doc. # 68-1 at depo. p. 13435.)
When construing the evidence in the light most favorable to Plaintiff, the court
finds that he has come forward with sufficient evidence to lead a reasonable
factfinder to conclude that the legitimate, non-retaliatory reasons for demoting
Plaintiff and cutting his pay are unworthy of credence. The evidence offered by
Plaintiff indicates that his position with Alfa appeared to be secure before Dees’s
return and that he should have, at the very minimum, remained in a position similar
to his long-standing one as a successful senior vice president. Rather, despite
Plaintiff’s exemplary job performance with Alfa, Plaintiff was demoted to a district
manager shortly after Dees’s return while other individuals without his extensive
qualifications and superlative job performance evaluations were promoted. (Doc.
# 74-1 at p. 2.)
Evidence presented regarding Dees’s antagonistic actions toward Plaintiff
following Dees’s return to Alfa also tends to negate any suggestion that Alfa’s
reorganization was the real reason behind the adverse employment actions taken
against Plaintiff. Accordingly, because Plaintiff has demonstrated the existence of
pretext and that Dees’s retaliation was the but-for cause of his demotion and cut in
pay, Alfa’s motion for summary judgment as to Plaintiff’s Title VII claim of
retaliation is due to be denied.
State Law Claims
Negligent and/or Wanton Hiring, Training, Supervision and
In Count II of the Complaint, Plaintiff asserts that Alfa “negligently, recklessly,
wantonly and/or intentionally hired officers, managers and/or supervisors within its
corporation that it knew would in the future and had in the past retaliated against”
Alfa’s employees. (Doc. # 1 at p. 14.) Alfa contends that Plaintiff’s claim fails
because Plaintiff has failed to identify any tort committed by Dees against Plaintiff.
(Doc. # 67 at pp. 14-15.) Agreeing that he has not alleged a tort recognized under
Alabama law, Plaintiff has abandoned his claim in Count II. Accordingly, Alfa’s
summary judgment motion is due to be granted as to this claim.
Plaintiff asserts in Count III of the Complaint that Alfa, through certain
remarks made by Parnell, made representations which it knew to be false, that
Plaintiff reasonably relied on these representations to continue employment with Alfa,
and that Plaintiff was injured and incurred damages as a proximate result of Alfa’s
misrepresentations. (Doc. # 1 at pp. 16-17.) Specifically, Plaintiff cites Parnell’s
remarks to Plaintiff that he “had been a bright spot in this organization for years now”
and that he has “nothing to be concerned about” with respect to his job or position in
the company. (Doc. # 68-1 at depo. p. 88; Doc. # 68-4 at depo. p. 72.) Plaintiff
contends that, based on Parnell’s remarks, he “continued in his employment with Alfa
and allowed a State Manager position with another company to evaporate.” (Doc.
# 74 at p. 26.)
In Alabama, “[m]isrepresentations of a material fact made willfully to deceive,
or recklessly without knowledge, and acted on by the opposite party, or if made by
mistake and innocently and acted on by the opposite party, constitute legal fraud.”
Ala. Code § 6-5-101. To succeed on a claim of fraudulent misrepresentation, a
plaintiff must show: “‘(1) a false representation (2) concerning a material existing fact
(3) [reasonably] relied upon by the plaintiff (4) who was damaged as a proximate
result.’” Fisher v. Comer Plantation, Inc., 772 So. 2d 455, 463 (Ala. 2000) (quoting
Baker v. Bennett, 603 So. 2d 928, 935 (Ala. 1992)).
Alfa first contends that Plaintiff cannot establish a claim of fraudulent
representation because he cannot demonstrate that Parnell made a false representation
of a material fact with the necessary intent to deceive. (Doc. # 67 at p. 16.) Alfa
characterizes Plaintiff’s misrepresentation claim as one for promissory fraud since “it
involves an alleged misrepresentation about a future act.” (Doc. # 67 at p. 16.)
According to Alfa, Parnell merely provided Plaintiff with general reassurances in
December of 2012 and had no intent to deceive. (Doc. # 67 at p. 16.) Plaintiff,
however, maintains that Parnell’s misrepresentations were fraudulent as they induced
him to stay at his job to his detriment. (Doc. # 74 at p. 26.)
Alfa correctly asserts that Plaintiff’s fraudulent misrepresentation claim is one
of promissory fraud in that Parnell’s statements essentially communicated to Plaintiff
that he need not be concerned about his position or job in the company going forward.
“Promissory fraud . . . occurs by the failure to perform a promise – i.e. the failure to
perform some promised future act.” Glenn Constr. Co., LLC v. Bell Aerospace
Servs., Inc., 785 F. Supp. 2d 1258, 1276 (M.D. Ala. 2011). Alabama law “places a
heavier burden in those fraud actions where one attempts to prove fraud based on a
misrepresentation relating to an event to occur in the future.” Nat’l Sec. Ins. Co. v.
Donaldson, 664 So. 2d 871, 876 (Ala. 1995). Thus, in addition to the four elements
of fraudulent misrepresentation set forth above, Plaintiff also must show “that at the
time of the misrepresentation, [Parnell] had the intention not to perform the act
promised, and . . . proof that the defendant had an intent to deceive.” S.B. v. Saint
James Sch., 959 So. 2d 72, 101 (Ala. 2006).
A fair reading of Parnell’s remarks to Plaintiff in December of 2012 reveals
nothing more than general reassurances that Plaintiff should not be concerned about
his position in Alfa. Plaintiff has submitted no evidence to suggest that Parnell had
the requisite intent at the time he made the remarks not to perform the act promised.
The record is devoid of any evidence to suggest that Parnell intended to deceive
Plaintiff with his general reassurances. When construing all the evidence in the light
most favorable to Plaintiff, Plaintiff otherwise fails to show that Parnell made a false
representation with respect to an existing fact at the time he made his remarks.
Plaintiff’s claim for fraudulent misrepresentation, therefore, fails.
Even assuming that Parnell made a false representation concerning a material
existing fact with the requisite intent to deceive, Alfa further contends that Plaintiff’s
alleged reliance on Parnell’s remarks was not reasonable. (Doc. # 67 at p. 18.)
Plaintiff counters that Parnell’s remarks induced him to continue his job where he
otherwise would have left or pursued other employment. (Doc. # 74 at p. 26.)
With regard to the reliance element of this claim, a plaintiff must show not only
that he relied on the alleged misrepresentation, but also that such reliance was
reasonable under the circumstances. Baker v. Metro. Life Ins. Co., 907 So. 2d 419,
421 (Ala. 2005). “The determination of reliance should be ‘based on all the
circumstances surrounding the transaction including the mental capacity, educational
background, relative sophistication, and bargaining power of the parties.” Graham
v. First Union Nat’l Bank of Ga., 18 F. Supp. 2d 1310, 1317 (M.D. Ala. 1998)
(quoting Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala. 1997)). “[W]here
a party has reason to doubt the representation . . . , he has no right to act thereon.”
Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413, 415 (Ala. 1980).
Plaintiff testified that he chose not to pursue a potential job lead at Cotton
States after his conversation with Parnell. (Doc. # 68-1 at depo. pp. 112-13.)
However, Plaintiff’s deposition testimony further reveals that he: (1) was aware that
changes to the personnel and management structure had occurred in the past after a
change in leadership (Doc. # 68-1 at depo. pp. 57-62, 168-69); (2) was aware that
such changes could take place after Parnell came on board following his election as
Alfa’s President and CEO (Doc. # 68-1 at depo. p. 169); (3) recognized that Parnell
could change his mind after the meeting in December 2012 (Doc. # 68-1 at depo. p.
98); and (4) knew that Parnell did not have the authority to hire and fire anyone (Doc.
# 68-1 at depo. pp. 96-97.)
When the evidence is construed in the light most favorable to Plaintiff, his
testimony reflects that his reliance upon Parnell’s general assurances in December of
2012 was not reasonable after knowing that changes in Alfa’s personnel and
management structure were likely and that Parnell was well within his right to change
his mind regarding Plaintiff. In other words, Plaintiff could not reasonably rely on
such assurances to believe that he would never face any potential changes regarding
his position at Alfa.7
Plaintiff’s claim for fraudulent misrepresentation fails,
therefore, on the alternative basis that Plaintiff has not raised a genuine dispute of
material fact as to reasonable reliance.8
Plaintiff asserts in Count IV of his Complaint that Alfa “fraudulently
suppressed and/or concealed that [Alfa] planned to change Plaintiff’s job duties and
responsibility and not allow Plaintiff to continue to work as the Senior Vice President
of Marketing for Mississippi and Georgia.” (Doc. # 1 at p. 17.) Plaintiff alleges that
Alfa had a strict duty to disclose all material facts pertaining to Plaintiff’s changing
job responsibilities and duties. (Doc. # 1 at p. 18.)
Plaintiff argues for the first time in his response to the summary judgment motion that
Parnell fraudulently misrepresented to Plaintiff during a conversation in May of 2013 that Parnell
had “big plans” for Plaintiff. (Doc. # 68-1 at p. 49; Doc. # 74 at p. 27.) This conversation took place
after Plaintiff had been demoted to the district manager position. Plaintiff, however, has not moved
to amend his complaint to raise this additional claim of fraudulent misrepresentation. It is, therefore,
not properly before the court. See Boone v. City of McDonough, 571 F. App’x 746, 750-51 (11th
Cir. 2014) (recognizing that claims raised for the first time in a response to a summary judgment are
not properly before the district court). Moreover, Plaintiff fails to establish that Parnell made this
statement with the intent to deceive Plaintiff or that Plaintiff reasonably relied on this statement in
any fashion to his detriment.
Alfa further argues that Plaintiff’s fraudulent misrepresentation claim should be dismissed
because Plaintiff cannot show how he was damaged due to his alleged reliance on Parnell’s remarks.
(Doc. # 67 at p. 19.) It is unnecessary to determine whether Plaintiff can satisfy the damages element
of his fraudulent misrepresentation claim as he has failed to establish all other elements of this claim.
“In order to establish [his] claim of fraudulent suppression, [Plaintiff was]
required to prove 1) that [Alfa] had a duty to disclose material facts; 2) that [Alfa]
concealed or failed to disclose those facts; 3) that the concealment or failure to
disclose those facts induced [Plaintiff] to act or refrain from acting; and 4) that
[Plaintiff] suffered actual damage as a proximate result.” Keck v. Dryvit Sys., Inc.,
830 So. 2d 1, 11 (Ala. 2002). “‘[A]n action for suppression will lie only if the
defendant actually knows the fact alleged to be suppressed.’” Cook’s Pest Control,
Inc. v. Rebar, 28 So. 3d 716, 726 (Ala. 2009) (quoting McGarry v. Flounoy, 624 So.
2d 1359, 1362 (Ala. 1993)).
The Alabama Supreme Court has held that:
A party’s mere silence as to a material fact does not constitute fraud
unless that party is under a duty to disclose that fact. A duty to disclose
can arise either from a confidential relationship with the plaintiff or from
the particular circumstances of the case.
Keck, 830 So. 2d at 11. Factors relevant to determining “whether the alleged
circumstances create a duty of disclosure include, (1) the relationship of the parties;
(2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the
plaintiff’s opportunity to ascertain the fact; (5) the customs of the trade; and (6) other
relevant circumstances.” Cochran v. Five Points Temporaries, LLC, 907 F. Supp. 2d
1260, 1278 (N.D. Ala. 2012) (citations and internal quotations omitted). “This
analysis is made on a ‘case-by-case basis’ and is flexibly applied.” Id.
Alfa cites two cases from the Alabama Supreme Court which, according to
Alfa, “recognize a general duty of disclosure is not owed by employers to
employees.” (Doc. # 67 at p. 22.) However, each case is materially distinguishable
from the facts and legal issues presented in this case.
In the first case, Morris v. Merritt Oil Co., 686 So. 2d 1139 (Ala. 1996), the
plaintiff worked as a cashier in a convenience store. Id. at 1140. She sued the
convenience store owners, the convenience store’s sales coordinator, and the supplier,
claiming that the defendants negligently or wantonly failed to provide her with a safe
workplace when a gambling device known as the “Klondike” was placed in the store.
Id. The plaintiff further claimed that: (1) the convenience store owners and sales
coordinator “fraudulently suppressed the material fact of the illegality of the”
gambling device; and (2) these defendants “had a duty to disclose to her that the
Klondike could be an illegal gambling device.” Id. at 1145. Without specifically
commenting on whether the plaintiff’s employer had a duty to disclose, the Alabama
Supreme Court found no evidence to indicate that the convenience store owners and
sales coordinator knew the Klondike was illegal and, thus, “no evidence of fraudulent
suppression of material facts to the detriment of the plaintiff.” Id.
In the second case cited by Alfa, Van Ryswyk v. Berwick Bay Oil Co., 571 So.
2d 291 (Ala. 1990), the plaintiff sued his former employer following termination of
his employment. Id. at 292. In his appeal to the Alabama Supreme Court, the
plaintiff contested summary judgment as to his claims that the employer, through its
president, “was negligent in failing to disclose to him, prior to his accepting
employment, that the president did not have the authority to offer him an employment
contract for five years at a pay rate of $65,000 per year.” Id. The Alabama Supreme
Court affirmed summary judgment on these negligent counts, finding no evidence that
the employer owed the plaintiff any duty. Id. at 293.
In contrast to Van Ryswyk, Plaintiff’s claim against Alfa is one for fraudulent
suppression as opposed to a negligence claim. In addition, the plaintiff in Van
Ryswyk complained of conduct by the defendant’s president that occurred before he
became employed by the defendant. Plaintiff in this case, however, complains of
statements made by Parnell that occurred while he was an active employee of Alfa.
Application of the factors articulated in Cochran suggests that Alfa may have a duty
to disclose information relevant to Plaintiff’s standing with the company based on the
parties’ employer-employee relationship, the fact that such information would have
great value to Plaintiff, and the fact that Plaintiff would have a limited opportunity
to ascertain on his own matters relating to his standing with the company.
Even assuming that Alfa had a duty to disclose information pertaining to
Plaintiff’s standing with the company, Plaintiff fails to present evidence showing that
Parnell suppressed any information in December of 2012 that Plaintiff’s position with
the company would be adversely affected going forward. The record is devoid of
evidence that Parnell concealed or failed to disclose any material information
regarding Plaintiff’s status with Alfa. See Cork v. Marriott Int’l, Inc., 426 F. Supp.
2d 1234, 1246 (N.D. Ala. 2006) (recognizing that “a plaintiff faced with a motion for
summary judgment on a fraudulent suppression claim must offer substantial evidence
as to each of those elements”). Thus, when construing all the evidence in the light
most favorable to Plaintiff, the court finds that Plaintiff’s claim for fraudulent
suppression cannot survive summary judgment.
Negligent Misrepresentation and/or Suppression
Plaintiff asserts in Count V that Alfa, through certain remarks made by Parnell,
“negligently, recklessly or wantonly made . . . representations and/or suppressed
material facts relating to changing Plaintiff’s job and not allowing him to work as the
Senior Vice President of Marketing for Mississippi and Georgia.” (Doc. # 1 at p. 19.)
In order to establish a claim of negligent misrepresentation, a plaintiff must establish:
“(a) a false representation of an existing material fact; (b) a representation (1) that the
speaker knew was false when made, (2) that was made recklessly and without regard
to its truth or falsity, or (3) that was made by telling the listener that the speaker had
knowledge that the representation was true while having no such knowledge; (c)
reliance by the listener on the representation, coupled with deception by it; (d) the
reasonableness of that reliance under the circumstances; and (e) damage to the
listener proximately resulting from his or her reasonable reliance.” City of Prattville
v, Post, 831 So. 2d 622, 628 (Ala. Civ. App. 2002) (citing Cato v. Lowder Realty Co.,
630 So. 2d 378, 381-82 (Ala. 1993)).
Plaintiff fails to present any evidence to show that Parnell made a false
representation in December of 2012 with respect to an existing material fact at the
time he made his remarks. Furthermore, as discussed above, the record is devoid of
any evidence to suggest that: (1) Parnell intended to deceive Plaintiff with his
general reassurances; (2) Parnell concealed or failed to disclose any material
information regarding Plaintiff’s status with Alfa; or (3) Plaintiff reasonably relied
on Parnell’s assurances to believe that he would never face any potential changes
regarding his position at Alfa. Thus, when construing all the evidence in the light
most favorable to Plaintiff, the court finds that Plaintiff’s claim in Count V cannot
survive summary judgment.
Based on the foregoing analysis, Alfa’s motion for summary judgment (Doc.
66) was granted in part and denied in part (Doc. # 97). The summary judgment
motion was granted as to Plaintiff’s state law claims in Counts II, III, IV, and V of the
complaint. The summary judgment motion was denied as to Plaintiff’s Title VII
claim of retaliation in Count I.
DONE this 6th day of April, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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